Holidays with Pay Convention, 1936 (No. 52) - Albania (RATIFICATION: 1957)

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Article 2(3) of the Convention. Public holidays not to be included in the annual holiday. The Committee notes the Government’s indication that the Labour Code is being revised to include an express provision that public holidays are excluded from the duration of annual leave, as prescribed by this Article of the Convention. The Committee requests the Government to transmit a copy of the new text once it has been adopted.

Article 4. Relinquishment of the right to annual holiday. With reference to its previous comment, the Committee notes the Government’s indication that it intends to modify section 94(5) of the Labour Code to specifically provide that no monetary compensation may be given in lieu of annual leave except when the employment relationship has ended and the employee has not taken the leave they are entitled to. The Committee requests the Government to transmit a copy of the new text once it has been adopted.

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Article 1 of the Convention. Scope of application. Further to its previous comment, the Committee notes the Government’s explanations concerning the annual leave entitlement of those categories of employees who are excluded from the scope of application of the Labour Code, such as members of the judiciary, the armed forces and police, the Internal Inspection Service, the State Information Service, the judicial police or the Prosecutor’s Office. The Committee requests the Government to specify whether any special rules on annual paid holidays have so far been issued for those categories of workers enumerated in section 97(1) of the Labour Code, for instance, workers employed in hotels and restaurants, agricultural enterprises, car transport companies, education institutions, or construction sites, and if so, to transmit copy of any relevant legal text.

Article 2(3). Public holidays not included in the annual holiday. The Committee notes that neither the Labour Code nor the Decision of the Council of Ministers No. 511 of 24 October 2002 concerning duration of working time and annual leave in the state institutions appear to contain any specific provision expressly excluding public holidays from the duration of annual leave. The Committee therefore again requests the Government to indicate any legal provision giving effect to this requirement of the Convention.

Article 4. Relinquishment of the right to annual holidays. The Committee recalls that the Convention requires the prohibition of any agreement to relinquish the right to annual leave, it being understood that for social and health reasons it should not be open to the worker to abandon his holidays, in return of monetary compensation or otherwise. The Committee therefore again requests the Government to specify how the prohibition to forgo holidays is given effect in law and practice.

Part V of the report form. Practical application. The Committee notes that according to the statistical information provided by the Government, only 1,640 workers, or 5.5 per cent of the workforce, are not entitled to the statutory minimum of 28 days of annual paid leave whereas the Union of Independent Trade Unions of Albania estimate that approximately 30 per cent of workers in the private sector do not enjoy the statutory annual leave. The Committee requests the Government to provide further clarifications in this respect. It also requests the Government to continue providing up to date information on the practical application of the Convention, including labour inspection results showing the number of infringements observed and sanctions imposed as well as copies of collective agreements containing provisions on annual holidays with pay.

The Committee once more recalls the ILO Governing Body’s decision that Convention No. 52 is an outdated instrument and consequently States parties to this Convention should be invited to consider ratifying the more recent Holidays with Pay Convention (Revised), 1970 (No. 132) (see GB.283/LILS/WP/PRS/1/2, paragraph 12). The Committee therefore requests the Government to favourably consider the possibility of ratifying Convention No. 132, and to keep the Office informed of any decision taken or envisaged in this regard.

Finally, the Committee draws the Government’s attention to the conclusions of the ILO Tripartite Meeting of Experts on Working-Time Arrangements, held in October 2011, according to which the provisions of existing ILO standards relating to daily and weekly hours of work, weekly rest, paid annual leave, part-time and night work, remain relevant in the 21st century, and should be promoted in order to facilitate decent work. The Experts also emphasized the importance of working time, its regulation, and organization and management, to: (a) workers and their health and well-being, including opportunities for balancing working and non-work time; (b) the productivity and competitiveness of enterprises; and (c) effective responses to economic and labour market crises.

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Article 1 of the Convention. Scope of application. The Committee notes that, under the terms of section 4 of the Labour Code, persons whose employment is regulated by special legislation are excluded from the scope of the Labour Code. It requests the Government to specify the categories of workers so excluded from the scope of the Labour Code and to provide a copy of any legislation respecting annual holidays with pay that is applicable to them. The Committee also notes section 18(2) of the Labour Code, which provides that the Council of Ministers may make special rules covering homeworkers, temporary workers and employees in construction, transport, mines and ports. It requests the Government to provide a copy of any text adopted under this provision establishing special rules respecting annual holidays with pay for the workers concerned.

Article 2, paragraph 3. Sick leave and public holidays. The Committee notes that, in accordance with section 92 of the Labour Code, the duration of annual holidays with pay is defined by the collective contract or the individual contract of employment and may not be less than four calendar weeks. It further notes that, under section 93(2) of the Labour Code, an employee who is absent from work because of sickness or accident may request postponement of the annual holidays. It is the Committee’s understanding that this provision refers to cases in which the accident or illness occurs before the beginning of the annual holidays and accordingly allows the employee concerned to request postponement of the holidays. With regard to sickness or accidents occurring during the annual holidays, the Committee notes the Government’s indication that in practice the employer defers the leave to which the worker is entitled upon the presentation of a medical certificate. The Committee requests the Government to indicate whether it is planning to take measures to make this practice compulsory by introducing a provision to this effect into the Labour Code. The Committee also notes that, according to the Government’s report, if the period of annual holiday includes public holidays, the leave is extended by the corresponding number of days. It requests the Government to indicate the provisions guaranteeing that public holidays are in practice excluded from the duration of annual holidays, as required by this Article of the Convention.

Article 4. Relinquishment of annual holidays. The Committee notes that, in its report, the Government refers to section 97(2) of the Labour Code, under which any specific provision which undermines the right of workers to annual holidays with pay is void. It also notes that, under section 93(3) of the Labour Code, annual holidays must be given during the year or, at the latest, until the end of the first quarter of the following year. However, it notes that subsection 4 of the same section provides that the right to annual holidays is only valid for three years. The Committee requests the Government to indicate the manner in which it is ensured in practice that any agreement to relinquish the right to annual holidays with pay is void, considering that it is possible for the parties to conclude an agreement under which the worker would not take the annual holidays to which he/she is entitled, such entitlement being lost three years.

Part V of the report form. The Committee notes that, during the period covered by the Government’s report, around 6,000 inspections were carried out but no infringements were identified of the rules respecting annual holiday with pay. It requests the Government to provide a general appreciation of the manner in which the Convention is applied in practice including, for instance, copies of collective agreements containing clauses respecting annual holidays, extracts from reports of the inspection services and, if such statistics are available, information concerning the number of workers covered by the relevant legislation, the number and nature of contraventions reported and the measures taken, etc.

The Committee also takes this opportunity to recall that, at the proposal of the Working Party on Policy regarding the Revision of Standards, the ILO Governing Body considered that the Convention was outdated and invited the States parties to the Convention to contemplate ratifying Convention No. 132, which is not considered fully up to date but remains relevant in certain respects (see document GB.283/LILS/WP/PRS/1/2, paragraph 12). The acceptance of the obligations of Convention No. 132 in respect of persons employed in economic sectors other than agriculture by a State party to the Convention ipso jure involves the immediate denunciation of Convention No. 52. The ratification of Convention No. 132 all the more appropriate as the legislation of Albania, which provides for an annual holiday of at least four weeks, is clearly more favourable than the requirements of Convention No. 52. The Committee requests the Government to keep the Office informed of any decision that it may take with regard to the ratification of Convention No. 132.

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Article 2, paragraph 3, of the Convention. Public and customary holidays and interruption of attendance at work due to sickness. Section 92(3) of the Labour Code states that periods of temporary disability to work are considered as working time. Furthermore, section 93(2) states that an employee who is hospitalized or stays at home due to sickness or injury, certified by means of a medical report, may demand to postpone his/her annual holidays. The Committee reminds the Government that interruptions of attendance at work due to sickness should not be included in the annual holidays with pay and, to that extent, the worker should not have to request for the postponement of his annual holidays as it should not be considered as annual holidays from the outset. The Committee requests the Government to amend the legislation to bring the provision in line with the Convention. It also requests the Government to indicate which legislative provisions ensure that public and customary holidays are not included in the annual holiday with pay.

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The Committee has taken note of the Government's last report on the application of the Convention. It has also taken note of Act No. 7961 of 12 July 1995 issuing the Labour Code, and more specifically of the provisions contained in Chapter IX, Part 5, concerning annual holidays. The Government is asked to provide additional information on the following points.

Article 2 of the Convention. The Committee notes that, under the terms of section 93(3) of the Labour Code, annual holidays must include at least six consecutive days. The Committee recalls that, under the terms of Article 2, paragraph 1 of the Convention, the annual holiday to which every person is entitled after one year of continuous service must include at least six working days. The Committee asks the Government to indicate the manner in which it gives effect to this provision of the Convention.

Points III and V of the report form. The Government is asked to provide general information on the manner in which the Convention is applied in practice, including information on the organization and working of the inspection services and, where appropriate, extracts from the reports produced by these inspection services, information on the number of workers covered by the legislation in force, and the number and nature of any contraventions reported.