Weekly Rest (Commerce and Offices) Convention, 1957 (No. 106) - Aruba

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In order to provide a comprehensive view of the issues relating to the application of ratified Conventions on working time, the Committee considers it appropriate to examine Conventions Nos 14 (weekly rest in industry) and 106 (weekly rest in commerce and offices) together.

Article 1 of Convention No. 14 and Article 2 of Convention No. 106. Scope of application. In its previous comment, the Committee had noted that the Labour Ordinance of 2013 (section 3.1) does not apply to workers earning more than twice the gross monthly minimum wage and had recalled that the Conventions apply to all workers irrespective of their level of earnings. The Committee notes that the Government’s report remains silent on this point. The Committee requests the Government to indicate in which manner it ensures that the provisions of the Conventions are given full effect regarding workers excluded from the Labour Ordinance of 2013 based on their level of earnings.

Article 5 of Convention No. 14 and Article 8(3) of Convention No. 106. Compensatory rest. The Committee notes that under section 16(2)(b) of the Labour Ordinance, workers who perform overtime work on their weekly rest day shall receive an overtime bonus of at least 50 percent of the applying hourly wage. It also notes that, under section 16(4) of the Labour Ordinance, by written agreement between the worker and the employer, the work during the weekly rest day shall be compensated either financially or in time off. The Committee recalls that Article 5 of Convention No. 14 and Article 8(3) of Convention No. 106 require workers who are deprived of their weekly rest to be granted compensatory rest irrespective of any monetary compensation. The Committee therefore requests the Government to take the necessary measures to ensure that compensatory rest is granted to workers who are required to work on their weekly rest day and to provide information on any progress made in this respect.

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Articles 7 and 8 of the Convention. Permanent and temporary exemptions – Compensatory rest. The Committee notes the Government’s explanations concerning the recent legislative changes in working and rest time, through the amendment of the Labour Ordinance which became effective as from 1 April 2013. The Government indicates that these changes seek to promote flexible working time arrangements and adds that section 10(1)(b) of the new Labour Ordinance provides for a day of rest for all workers, and for workers working a six-day work week, an extra half day of rest. As the text of the new Labour Ordinance has not been communicated to the Office, the Committee is not in a position to verify whether provision is made for compensatory rest (irrespective of any monetary compensation) for those workers who may be required, either regularly or occasionally, to work on their weekly rest day. The Committee accordingly requests the Government to (i) clarify whether the new Labour Ordinance provides for compensatory rest whenever work is performed on a weekly rest day, as required under these Articles of the Convention, and (ii) transmit a list of the categories of persons and types of establishments subject to special weekly rest schemes, as well as information on the circumstances in which temporary exemptions from the ordinary weekly rest schedule may be granted. In addition, the Committee understands that the new Labour Ordinance does not apply to workers earning more than twice the gross monthly minimum wage. Recalling that the Convention applies to all workers irrespective of level of earnings, the Committee requests the Government to provide additional clarification in this respect. Finally, the Committee would appreciate receiving a copy of the Labour Ordinance 2013 (AB 2013 No. 14) and the 2013 amendments to the Civil Code.

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Article 7, paragraph 2, and Article 8, paragraph 3, of the Convention. Permanent and temporary exemptions. Compensatory rest. Further to its previous comments relating to section 2(1)(a)–(d) of Labour Decree I (1990 No. GT58), the Committee notes the Government’s indication that in practice it leaves it to the discretion of the employer to award rest periods in accordance with the needs of the enterprise. It also notes that, in view of the contradictions that have emerged between the provisions of the above Decree and those of the 1990 Labour Ordinance, the labour legislation and the relevant part of the Civil Code have been under review since July 2004. The Government indicates that new legislative texts should soon be submitted to Parliament. While noting the Government’s will to introduce a certain degree of flexibility into working time arrangements and rest periods for certain sectors or enterprises, the Committee is bound to recall the basic principles of the Convention, which are intended to ensure a minimum period of rest and relaxation to workers, which is essential for their health and well-being. It therefore requests the Government to: (i) indicate the manner in which it is ensured that, in accordance with Article 7(2) of the Convention, all persons to whom special schemes apply shall be entitled, in respect of each period of seven days, to rest of a total duration at least equivalent to the period provided for in Article 6, that is 24 hours; (ii) indicate the manner in which it is ensured that, in accordance with Article 8(3) of the Convention, where temporary exemptions are made, compensatory rest of a total duration at least equivalent to the minimum period provided for under Article 6 is granted; and (iii) provide copies of the new legislative texts as soon as they have been adopted.

The Committee also notes that, according to the Government’s report submitted under the Weekly Rest (Industry) Convention, 1921 (No. 14), the policy followed in respect of the application of Labour Decree I is to grant the workers concerned the fourth Sunday off in a period of four weeks. It further notes that, under the terms of a collective agreement for the hotel sector, which had been provided previously by the Government, a Sunday rest day is granted for each period of six weeks. The Committee recalls that, although the Convention does not establish a precise period within which the compensatory rest period shall be granted, compliance with the spirit of the Convention requires that this should be within a reasonably short period. In this respect, it wishes to draw the Government’s attention to Paragraph 3 of the Weekly Rest (Commerce and Offices) Recommendation, 1957 (No. 103), which indicates that special weekly rest schemes should be such as to ensure that the persons to whom they apply do not work for more than three weeks without receiving the rest periods to which they are entitled. The Committee therefore requests the Government to provide clarifications on this subject.

Part V of the report form. Application in practice. The Committee requests the Government to provide general information on the application of the Convention in practice, including statistical data on the number of workers covered by the legislation giving effect to the Convention, extracts from reports of the inspection services indicating the number of contraventions reported to the regulations respecting the weekly rest period and the penalties imposed, copies of recent collective agreements containing clauses relating to the weekly rest period (such as the collective agreements in the hotel sector and the theatres and places of public entertainment sector), etc.

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The Committee notes the Government’s report, including the information on the matters raised in its previous comments. It also takes note of the Labour Ordinance of 1990 and Labour Decree I (1990, No. GT 58), Labour Decree II (1990, No. GT 59) and Labour Decree III (1990, No. GT 14), which have been issued according to section 20 of the Ordinance in order to allow exceptions from its working and rest time regulations. The Committee requests the Government to provide additional information on the following points in its next report.

Article 7, paragraph 2, and Article 8, paragraph 3, of the Convention. The Committee notes that, similar to the relevant provisions of the Labour Ordinance of 1952, sections 7 and 10 of the Labour Ordinance of 1990 and section 2(1)(a) to (d) of Labour Decree I of 1990 permit derogations to the weekly rest provision made under section 8 of the Ordinance for particular types of work under specific conditions. It also notes that section 10(2) of the Ordinance in case of work on a weekly rest day provides for compensatory rest, as far as possible, and that section 6 of Decree I restricts compensatory rest to cases where workers are not entitled to the monetary compensation stipulated under sections 22 and 23 of the Ordinance. Furthermore, the Committee has taken note of the provisions of collective agreements in the hotel sector relating to work on the weekly rest day.

The Committee requests the Government to indicate the measures taken or envisaged to ensure that all persons covered by special weekly rest schemes or temporary derogations are granted the minimum weekly rest period prescribed by Article 7, paragraph 2, of the Convention, or the compensatory rest provided for under Article 8, paragraph 3, of the Convention.

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The Committee takes note of the Government's last report on the application of the Convention and the information contained in it in reply to its previous direct request. The Committee requests the Government in its next report to provide additional information on the following points.

Article 8, paragraphs 2 and 3, of the Convention. The Government is requested to indicate the results of any consultations and, where applicable, any measures taken or planned with regard to granting compensatory leave of at least 24 hours in cases of temporary exemptions for the reasons set out in the first paragraph of this Article.

Article 11. The Committee, noting the intentions expressed by the Government, trusts that it will be able to provide a list of categories of persons and establishments covered by the special rules concerning weekly rest by virtue of section 20 of the Labour Ordinance of 1952, and to provide information on the circumstances in which temporary exemptions may be granted under the terms of sections 7 and 10 of this Ordinance.

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The Committee notes with regret that the Government's report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its previous direct request, which read as follows:

The Government is requested to indicate whether the Ordinance of 8 December 1964 and the Decree of 28 September 1966 concerning the status of public officials are still in force in Aruba.

Article 3 of the Convention. The Committee requests the Government to indicate whether it intends to apply the obligations of the Convention to the establishments listed in this Article.

Article 7, paragraph 2. The Committee notes that Decree No. 93 of 20 September 1954 which lays down the general rules for the application of section 20 of the Labour Ordinance of 1952 provides that persons to whom special weekly rest schemes are applied are guaranteed a compensatory rest day in respect of each period of seven days. It has also noted the provisions of two collective agreements in the hotel sector relating to work on the weekly rest day. The Government is requested to indicate whether the Decree is still in force in Aruba and, if not, to indicate the measures taken to ensure that all persons to whom special schemes apply are granted a rest period of at least 24 hours in respect of each period of seven days.

Article 8, paragraph 1. The Committee notes that, under section 7 of the Labour Ordinance, temporary permission may be granted for derogations to the weekly rest provision where particular circumstances may reasonably require. It further notes that exemptions may be granted to the weekly rest provision in emergencies under section 10 of the Ordinance. The Government is requested to indicate the measures taken to ensure that the permission granted under section 7 of the Labour Ordinance to derogate from the weekly rest provision is only granted in case of accident, force majeure or urgent work, in the event of abnormal pressure of work due to special circumstances or in order to prevent the loss of perishable goods.

Article 8, paragraph 3. The Committee notes that, in cases where an exemption has been granted under section 10 of the Labour Ordinance, the rest period on Sundays or equivalent days must, as far as possible, be replaced by a similar rest period. It further notes that there is no provision for compensatory rest in the cases of derogations permitted under section 7. The Government is requested to indicate the measures taken or envisaged to ensure that, where temporary exemptions to the weekly rest provision are made, all persons concerned are granted compensatory rest of a total duration of at least 24 hours.

Article 11. The Government is requested to list the categories of persons and the types of establishments which are subject to special rules concerning weekly rest by virtue of section 20 of the Labour Ordinance and to provide information, in its next report, on the circumstances in which temporary exemptions may have been made under sections 7 and 10 of the Ordinance.

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The Committee notes with regret that the Government's report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its previous direct request, which read as follows:

The Government is requested to indicate whether the Ordinance of 8 December 1964 and the Decree of 28 September 1966 concerning the status of public officials are still in force in Aruba.

Article 3 of the Convention. The Committee requests the Government to indicate whether it intends to apply the obligations of the Convention to the establishments listed in this Article.

Article 7, paragraph 2. The Committee notes that Decree No. 93 of 20 September 1954 which lays down the general rules for the application of section 20 of the Labour Ordinance of 1952 provides that persons to whom special weekly rest schemes are applied are guaranteed a compensatory rest day in respect of each period of seven days. It has also noted the provisions of two collective agreements in the hotel sector relating to work on the weekly rest day. The Government is requested to indicate whether the Decree is still in force in Aruba and, if not, to indicate the measures taken to ensure that all persons to whom special schemes apply are granted a rest period of at least 24 hours in respect of each period of seven days.

Article 8, paragraph 1. The Committee notes that, under section 7 of the Labour Ordinance, temporary permission may be granted for derogations to the weekly rest provision where particular circumstances may reasonably require. It further notes that exemptions may be granted to the weekly rest provision in emergencies under section 10 of the Ordinance. The Government is requested to indicate the measures taken to ensure that the permission granted under section 7 of the Labour Ordinance to derogate from the weekly rest provision is only granted in case of accident, force majeure or urgent work, in the event of abnormal pressure of work due to special circumstances or in order to prevent the loss of perishable goods.

Article 8, paragraph 3. The Committee notes that, in cases where an exemption has been granted under section 10 of the Labour Ordinance, the rest period on Sundays or equivalent days must, as far as possible, be replaced by a similar rest period. It further notes that there is no provision for compensatory rest in the cases of derogations permitted under section 7. The Government is requested to indicate the measures taken or envisaged to ensure that, where temporary exemptions to the weekly rest provision are made, all persons concerned are granted compensatory rest of a total duration of at least 24 hours.

Article 11. The Government is requested to list the categories of persons and the types of establishments which are subject to special rules concerning weekly rest by virtue of section 20 of the Labour Ordinance and to provide information, in its next report, on the circumstances in which temporary exemptions may have been made under sections 7 and 10 of the Ordinance.

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The Committee notes that the Government's report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its previous direct request, which read as follows:

The Government is requested to indicate whether the Ordinance of 8 December 1964 and the Decree of 28 September 1966 concerning the status of public officials are still in force in Aruba.

Article 3 of the Convention. The Committee requests the Government to indicate whether it intends to apply the obligations of the Convention to the establishments listed in this Article.

Article 7, paragraph 2. The Committee notes that Decree No. 93 of 20 September 1954 which lays down the general rules for the application of section 20 of the Labour Ordinance of 1952 provides that persons to whom special weekly rest schemes are applied are guaranteed a compensatory rest day in respect of each period of seven days. It has also noted the provisions of two collective agreements in the hotel sector relating to work on the weekly rest day. The Government is requested to indicate whether the Decree is still in force in Aruba and, if not, to indicate the measures taken to ensure that all persons to whom special schemes apply are granted a rest period of at least 24 hours in respect of each period of seven days.

Article 8, paragraph 1. The Committee notes that, under section 7 of the Labour Ordinance, temporary permission may be granted for derogations to the weekly rest provision where particular circumstances may reasonably require. It further notes that exemptions may be granted to the weekly rest provision in emergencies under section 10 of the Ordinance. The Government is requested to indicate the measures taken to ensure that the permission granted under section 7 of the Labour Ordinance to derogate from the weekly rest provision is only granted in case of accident, force majeure or urgent work, in the event of abnormal pressure of work due to special circumstances or in order to prevent the loss of perishable goods.

Article 8, paragraph 3. The Committee notes that, in cases where an exemption has been granted under section 10 of the Labour Ordinance, the rest period on Sundays or equivalent days must, as far as possible, be replaced by a similar rest period. It further notes that there is no provision for compensatory rest in the cases of derogations permitted under section 7. The Government is requested to indicate the measures taken or envisaged to ensure that, where temporary exemptions to the weekly rest provision are made, all persons concerned are granted compensatory rest of a total duration of at least 24 hours.

Article 11. The Government is requested to list the categories of persons and the types of establishments which are subject to special rules concerning weekly rest by virtue of section 20 of the Labour Ordinance and to provide information, in its next report, on the circumstances in which temporary exemptions may have been made under sections 7 and 10 of the Ordinance.

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The Committee notes with interest the information provided by the Government in its report. The Government is requested to indicate whether the Ordinance of 8 December 1964 and the Decree of 28 September 1966 concerning the status of public officials are still in force in Aruba. The Government is also requested to provide further information on the following points:

Article 3 of the Convention. Please indicate whether it is intended to apply the obligations of the Convention to the establishments listed in this Article.

Article 7, paragraph 2. The Committee notes that Decree No. 93 of 20 September 1954 which lays down the general rules for the application of section 20 of the Labour Ordinance of 1952 provides that persons to whom special weekly rest schemes are applied are guaranteed a compensatory rest day in respect of each period of seven days. It has also noted the provisions of two collective agreements in the hotel sector relating to work on the weekly rest day. The Government is requested to indicate whether the Decree is still in force in Aruba and, if not, to indicate the measures taken to ensure that all persons to whom special schemes apply are granted a rest period of at least 24 hours in respect of each period of seven days.

Article 8, paragraph 1. The Committee notes that, under section 7 of the Labour Ordinance, temporary permission may be granted for derogations to the weekly rest provision where particular circumstances may reasonably require. It further notes that exemptions may be granted to the weekly rest provision in emergencies under section 10 of the Ordinance. The Government is requested to indicate the measures taken to ensure that the permission granted under section 7 of the Labour Ordinance to derogate from the weekly rest provision is only granted in case of accident, force majeure or urgent work, in the event of abnormal pressure of work due to special circumstances or in order to prevent the loss of perishable goods.

Article 8, paragraph 3. The Committee notes that, in cases where an exemption has been granted under section 10 of the Labour Ordinance, the rest period on Sundays or equivalent days must, as far as possible, be replaced by a similar rest period. It further notes that there is no provision for compensatory rest in the cases of derogations permitted under section 7. The Government is requested to indicate the measures taken or envisaged to ensure that, where temporary exemptions to the weekly rest provision are made, all persons concerned are granted compensatory rest of a total duration of at least 24 hours.

Article 11. The Government is requested to list the categories of persons and the types of establishments which are subject to special rules concerning weekly rest by virtue of section 20 of the Labour Ordinance and to provide information, in its next report, on the circumstances in which temporary exemptions may have been made under sections 7 and 10 of the Ordinance.

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The Committee notes that the Government's report has not been received. It would be grateful if the Government would provide in its next report replies to the questions raised in the report form adopted by the Governing Body of the ILO and supply a copy of the Labour Ordinance of Aruba to which the Government refers in its report.

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The Committee takes note of the information of a very general nature contained in the report on the application of the Convention for the period 1986-88. It would be grateful if the Government would provide in its next report replies to the questions raised in the report form adopted by the Governing Body of the ILO and supply a copy of the Labour Ordinance of Aruba to which the Government refers in its report.