Hours of Work (Industry) Convention, 1919 (No. 1) - Bulgaria (RATIFICATION: 1922)

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Articles 2, 4, 5 and 6 of the Convention. Daily and weekly limits of hours of work – Permanent and temporary exceptions. The Committee notes the most recent amendments to the Labour Code, in 2014, which address matters such as maternity protection and apprenticeship rights but fail to take into account any of the Committee’s previous comments, which it has been making for nearly 20 years, concerning maximum working hours and permanent and temporary exceptions to those hours. More concretely, the Committee has been requesting the Government to take the necessary measures to bring the relevant provisions of the Labour Code into line with the requirements of the Convention concerning: (1) its provisions permitting “opting out” of the general standard of eight hours a day and 48 hours a week under conditions that extend far beyond those prescribed by Article 2 of the Convention; (2) section 136a(2), which allows employers to extend working hours in some workdays and compensate in other workdays up to a ten-hour workday, in contrast to Article 2(b); (3) section 142(4) which provides that, in relation to the averaging of hours of work, the maximum duration of a work shift may be up to 12 hours and the maximum duration of the working week may be up to 56 hours, in contrast to the Convention’s limits for shift work in general (Article 2(c)), shift work in continuous processes (Article 4), and the averaging of hours of work (Article 5); and (4) the absence of provisions which specify the categories of workers which, due to the special nature of their work, may be excluded permanently from the limits of Article 2 of the Convention, in line with Article 6.

The Committee notes, in this respect, that the Government merely indicates that, for the implementation of the Committee’s recommendations on aligning the provisions of the Labour Code with the Convention, discussions would need to be taken in advance with the social partners in the context of tripartite cooperation and dialogue. It also notes the comments formulated by the Confederation of Independent Trade Unions of Bulgaria regarding the application of section 147 of the Labour Code, according to which the provision of overtime for certain categories of persons is not applied based on the calculation of working time. Recalling that it has been identifying gaps in implementing legislation for several years, the Committee requests the Government to take the necessary measures in the very near future to bring its legislation in line with the requirements of the Convention. It reminds the Government that, should it so wish, it may seek technical assistance from the ILO in making the necessary legislative amendments. Moreover, the Committee draws the Government’s attention to Part V, as well as to paragraphs 227 and 228 of its General Survey of 2005 on hours of work, which provides further explanations and examples of good practice with respect to the procedures for the authorization of extension of working hours.

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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:

Repetition

Article 2 of the Convention. General standard on hours of work and permissible exceptions. The Committee notes that, under section 113(2) of the Labour Code, as last amended in 2006, upon giving their express agreement in writing, employees may work for more than 48 hours per week. It also notes that, under section 110 of the Labour Code, employees may conclude employment contracts with the employer for whom they are working for the performance of work outside their normal working hours. The Committee draws the Government’s attention to the requirement of the Convention which does not allow “opting-out” from its provisions that limit exceptions it permits. It therefore considers that, in its current reading, the Labour Code permits exceptions to the general standard of eight hours a day and 48 hours a week under conditions that go far beyond those prescribed by the Convention representing a real risk of abuse and a major threat for the worker’s health and welfare. In this regard, the Committee wishes to draw the Government’s attention to paragraph 144 of its General Survey of 2005 on hours of work in which it noted that, even though the establishment of specific limits to the total number of additional hours is left to the competent authorities, this does not mean that such authorities have unlimited discretion in this regard. Such limits must be “reasonable” and they must be prescribed in line with the general goal of the Convention, namely to establish the eight-hour day and 48-hour week as a legal standard of hours of work in order to provide protection against excessive fatigue and to ensure reasonable leisure and opportunities for recreation and social life. While noting that the opting-out clause has been the main obstacle to the efforts to revise European Working Time Directive 2003/88/EC, the Committee requests the Government to indicate the measures it intends to take in order to bring the national legislation into full conformity with the requirements of the Convention.

Article 2(b). Variable distribution of working hours within a week. The Committee notes that section 136a(2) of the Labour Code permits an employer to extend working hours in some workdays and compensate that in other workdays after consulting with workers’ representatives and on condition that the duration of the extended work day may not exceed ten hours. The Committee recalls, however, that the Convention permits the variable distribution of working hours within a week provided that in no case the daily limit of eight hours be exceeded by more than one hour. The Committee therefore requests the Government to take all necessary measures in order bring the relevant provisions of the Labour Code into line with the requirements of the Convention in this regard.

Articles 2, 4 and 5. Variable distribution of working hours over a period longer than a week. Further to its previous comment, the Committee notes that section 142(4) of the Labour Code, as last amended in 2006, still provides that, with relation to the averaging of hours of work, the maximum duration of a work shift can be up to 12 hours and the maximum duration of the working week can be up to 56 hours. The Committee observes that the scope of this provision is broader than the exceptions permitted by the Convention with respect to shift work in general, shift work in continuous processes. Concerning shift work in general (Article 2(c)), the Convention allows work to be performed in excess of eight hours in one day and 48 hours in any one week, only if the average number of hours over a period of three weeks or less does not exceed eight per day and 48 per week. With respect to shift work in continuous processes (Article 4), the Convention sets the limit of 56 hours in the week on average. Finally, as regards the averaging of hours of work (Article 5), the Convention provides that, only in exceptional cases where it is recognized that the general standard of an eight-hour working day and 48-hour working week cannot be applied, agreements concluded between employers and workers’ organizations can be transformed by the competent authority into regulations provided that the average number of hours worked per week over the number of weeks covered by such agreements does not exceed 48. The Committee accordingly asks the Government to take all necessary measures in order to amend section 142(4) of the Labour Code so as to bring the provisions of the national legislation on the averaging of hours of work into conformity with the requirements of the Convention. In addition, the Committee requests the Government to refer to the comments made under Article 6 of the Hours of Work (Commerce and Offices) Convention, 1930 (No. 30).

Article 6. Permanent and temporary exceptions. Following up on its previous comment concerning the possibility to establish open-ended working hours under section 139(4) of the Labour Code, the Committee notes with interest that this provision has been repealed following the latest amendment of the Labour Code (SG No. 48/2006). Moreover, the Committee has been requesting the Government to determine precisely the categories of workers which, due to the special nature of their work, may be excluded permanently from the limits of Article 2, in line with Article 6 of the Convention. Whereas the Government refers to section 113 of the Labour Code and the possibility for workers to conclude individual “opting-out” agreements, the Committee is once again obliged to recall that, according to Article 6(1)(a) of the Convention, permanent exceptions may be allowed only in preparatory or complementary work which must necessarily be carried on outside the limits laid down for the general working of an establishment (for instance, enginemen, electricians, cleaners), or for certain classes of workers whose work is essentially intermittent (for instance, doorkeepers, watchmen and works firemen). The Committee therefore requests the Government to take all appropriate steps in order to bring its legislation into full conformity with the Convention on this point.

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Article 2 of the Convention. General standard on hours of work and permissible exceptions. The Committee notes that, under section 113(2) of the Labour Code, as last amended in 2006, upon giving their express agreement in writing, employees may work for more than 48 hours per week. It also notes that, under section 110 of the Labour Code, employees may conclude employment contracts with the employer for whom they are working for the performance of work outside their normal working hours. The Committee draws the Government’s attention to the requirement of the Convention which does not allow “opting-out” from its provisions that limit exceptions it permits. It therefore considers that, in its current reading, the Labour Code permits exceptions to the general standard of eight hours a day and 48 hours a week under conditions that go far beyond those prescribed by the Convention representing a real risk of abuse and a major threat for the worker’s health and welfare. In this regard, the Committee wishes to draw the Government’s attention to paragraph 144 of its General Survey of 2005 on hours of work in which it noted that, even though the establishment of specific limits to the total number of additional hours is left to the competent authorities, this does not mean that such authorities have unlimited discretion in this regard. Such limits must be “reasonable” and they must be prescribed in line with the general goal of the Convention, namely to establish the eight-hour day and 48-hour week as a legal standard of hours of work in order to provide protection against excessive fatigue and to ensure reasonable leisure and opportunities for recreation and social life. While noting that the opting-out clause has been the main obstacle to the efforts to revise European Working Time Directive 2003/88/EC, the Committee requests the Government to indicate the measures it intends to take in order to bring the national legislation into full conformity with the requirements of the Convention.

Article 2(b). Variable distribution of working hours within a week. The Committee notes that section 136a(2) of the Labour Code permits an employer to extend working hours in some workdays and compensate that in other workdays after consulting with workers’ representatives and on condition that the duration of the extended work day may not exceed ten hours. The Committee recalls, however, that the Convention permits the variable distribution of working hours within a week provided that in no case the daily limit of eight hours be exceeded by more than one hour. The Committee therefore requests the Government to take all necessary measures in order bring the relevant provisions of the Labour Code into line with the requirements of the Convention in this regard.

Articles 2, 4 and 5. Variable distribution of working hours over a period longer than a week. Further to its previous comment, the Committee notes that section 142(4) of the Labour Code, as last amended in 2006, still provides that, with relation to the averaging of hours of work, the maximum duration of a work shift can be up to 12 hours and the maximum duration of the working week can be up to 56 hours. The Committee observes that the scope of this provision is broader than the exceptions permitted by the Convention with respect to shift work in general, shift work in continuous processes. Concerning shift work in general (Article 2(c)), the Convention allows work to be performed in excess of eight hours in one day and 48 hours in any one week, only if the average number of hours over a period of three weeks or less does not exceed eight per day and 48 per week. With respect to shift work in continuous processes (Article 4), the Convention sets the limit of 56 hours in the week on average. Finally, as regards the averaging of hours of work (Article 5), the Convention provides that, only in exceptional cases where it is recognized that the general standard of an eight-hour working day and 48-hour working week cannot be applied, agreements concluded between employers and workers’ organizations can be transformed by the competent authority into regulations provided that the average number of hours worked per week over the number of weeks covered by such agreements does not exceed 48. The Committee accordingly asks the Government to take all necessary measures in order to amend section 142(4) of the Labour Code so as to bring the provisions of the national legislation on the averaging of hours of work into conformity with the requirements of the Convention. In addition, the Committee requests the Government to refer to the comments made under Article 6 of the Hours of Work (Commerce and Offices) Convention, 1930 (No. 30).

Article 6. Permanent and temporary exceptions. Following up on its previous comment concerning the possibility to establish open-ended working hours under section 139(4) of the Labour Code, the Committee notes with interest that this provision has been repealed following the latest amendment of the Labour Code (SG No. 48/2006). Moreover, the Committee has been requesting the Government to determine precisely the categories of workers which, due to the special nature of their work, may be excluded permanently from the limits of Article 2, in line with Article 6 of the Convention. Whereas the Government refers to section 113 of the Labour Code and the possibility for workers to conclude individual “opting-out” agreements, the Committee is once again obliged to recall that, according to Article 6(1)(a) of the Convention, permanent exceptions may be allowed only in preparatory or complementary work which must necessarily be carried on outside the limits laid down for the general working of an establishment (for instance, enginemen, electricians, cleaners), or for certain classes of workers whose work is essentially intermittent (for instance, doorkeepers, watchmen and works firemen). The Committee therefore requests the Government to take all appropriate steps in order to bring its legislation into full conformity with the Convention on this point.

Part VI of the report form. Application in practice. The Committee notes the information contained in the Government’s report concerning labour inspection results for the period 2003–08. It also notes that the most frequently observed violation of the legislation on working time is the recourse to excessive overtime work (cases of female workers working around the clock in textile industries are even reported) mainly in the clothing and food industries. The Committee would be grateful if the Government would continue to provide up to date information on the practical application of the Convention, including, for instance, the number of workers covered by the relevant legislation, extracts from labour inspection reports showing the number and nature of infringements of the working time legislation observed and the sanctions imposed, copies of recent studies or surveys on working time issues, any difficulties encountered in the implementation of the Convention, etc.

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1. The Committee notes the comment of the Confederation of the Independent Trade Unions in Bulgaria (CITUB) on existing inconsistencies between Ordinance No. 50/28.12.2001 on the working hours for the management and executive personnel providing transportation of passengers and goods by rail and the provisions of the Convention. The CITUB points out that the time needed for the regular medical check-up, as well as for briefing and debriefing before and after work, appears not to be calculated as working time under section 13 of the Ordinance. Thus, the limits set by the Convention are exceeded. The Committee requests the Government to comment on the observation of the CITUB and to provide it as soon as possible with a copy of the Ordinance in order to enable it to analyse the compatibility between the Ordinance and the provisions of the Convention. With regard to the title of the Ordinance, the Committee merely recalls that the Convention shall not apply to persons holding positions of supervision or management (Article 2(a) of the Convention).

2. Act No. 25/2001 of 2 March 2001 to amend and supplement the Labour Code of Bulgaria implemented the full transition from the six-day working week to the five-day working week with an ordinary working time of eight daily and 40 weekly hours. The Committee notes the indication of the Government that further legislative action is under way to bring the Labour Code in line with the provisions of the Convention.

Article 2 of the Convention

3. Concerning the possibility of supplementary employment contracts, as regulated under sections 110-117 of the amended Labour Code, the Committee notes in particular the indication of the Government that the Bill on amendment and supplement of the Labour Code envisages that the weekly limit of working hours of a primary employment relationship with a supplementary employment relationship may not exceed 48 hours in total. The Committee hopes that the Bill will soon be adopted and requests the Government to provide it with a copy of the Act, once adopted.

4. The Committee notes that Amendment Act No. 25/2001 implemented a new section 136(a) in the Labour Code, which authorizes the employer to extend, for industrial reasons, the working time up to ten hours a day upon preliminary consultations with the representatives of the workers, and after information of the labour inspectorate. The Committee recalls that two additional working time hours arranged by the employer may be only permissible under the Hours of Work (Commerce and Offices) Convention, 1930 (No. 30), in establishments engaged in commercial activities and services. Within industrial undertakings, Article 2(b) of the Convention allows for recourse to an irregular distribution of normal working hours, but within the limit of only one more hour in addition to the standard eight-hour day. The Committee requests the Government to provide detailed data and figures on this provision of the Labour Code with regard to industrial undertakings.

5. Article 4. The Committee notes furthermore that the Amendment Bill envisages for section 142, paragraph 4, of the Labour Code a limit of 56 weekly hours for shift work under summarized calculation, where working hours can be up to 12 hours. The Committee recalls that the exceptional provision of Article 4, which allows that working hours may be up to 56 in the week on average are only permissible for shift work in continuous production processes, which is distinct from shift work under Article 2(c). It asks the Government to take this into consideration in the drafting process. For ordinary shift work, as for any other work, the limits to hours of work fixed by Article 2 of the Convention are obligatory, notwithstanding the permanent or temporary exceptions expressly set forth in the Convention. With regard to section 142, paragraph 2, of the Labour Code, which permits the employer to average the weekly hours over a reference period of up to four months, the Committee refers to its direct request under the Hours of Work (Commerce and Offices) Convention, 1930 (No. 30). Concerning industrial undertakings, working time for work other than shift work is limited under the provisions of Article 5 of the Convention to exceptional cases where it is recognized that the ordinary working hours cannot be applied, and the average working time per week must be limited to 48 hours.

6. Article 6, paragraph 1(a). While the former section 139, paragraph 4, restricted the possibility to establish open-ended working hours for some categories of workers to the authorization by the Ministry of Labour, Amendment Act No. 25/2001 now authorizes the individual employer, upon consultation with the representatives of the workers, to establish for some categories of workers, due to the special nature of their work, open-ended working hours.

The Committee recalls that exceptions from the ordinary working hours under Article 2 are only permitted by agreements between workers’ and employers’ organizations, as set forth in Article 5 of the Convention, whereby the average number of hours worked shall not exceed 48 hours, or in line with Article 6 of the Convention by regulations made by the public authority by determining the permanent exceptions from the provisions of Article 2. The Committee stresses that "open-ended working hours" are not permitted under Article 6, which stipulates the need to fix the additional hours in each instance.

Furthermore, the Committee recalls that permanent exceptions are only permissible for preparatory or complementary work which must be necessarily carried on outside the limits laid down for the general working of an establishment, or for certain classes of workers whose work is essentially intermittent. The Committee requests the Government to determine precisely the categories of workers which, due to the special nature of their work, may be excluded permanently or temporarily from the limits of Article 2, in line with Article 6 of the Convention. In particular, the Government is asked to fix the maximum of additional hours in each instance and to inform the Committee accordingly.

The Committee also requests the Government to provide it with detailed data and figures on categories of work in industrial undertakings where the ordinary working hours as established under Article 2 of the Convention may not be applied.

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The Committee notes the information supplied by the Government in reply to its previous direct request and wishes to draw its attention to the following points.

Article 2 of the Convention. The Committee notes that a worker who has concluded, in conformity with sections 110 and 111 of the Labour Code, a supplementary employment contract with his employer or with another employer may work up to 12 hours a day subject to the uninterrupted period of at least 12 hours of rest between working days, provided under section 152 of the Code. The Committee wishes to recall in this respect that the limits to hours of work fixed by Article 2 of the Convention are obligatory in character, notwithstanding the permanent or temporary exceptions expressly set forth in the Convention, and that they cannot be subject to alteration by contract, even where this is provided for by the law. In the view of the Committee, sections 110, 111 and 113 of the Labour Code are not in conformity with the provisions of the Convention in that they allow the limits of eight hours a day and 48 hours a week specified therein to be exceeded. Consequently it requests the Government to take all necessary measures to establish daily and weekly limits to working hours in conformity to those set forth by the Convention and by section 136 of the Labour Code, even in cases of internal and external accumulation of jobs.

Article 4. Section 142(2) of the Labour Code stipulates that an employer may establish a summarized calculation of working hours over a period not exceeding six months for continuous production processes. Paragraph 4 of the same section fixes the maximum working day at 12 hours. The Committee notes that under the terms of these provisions, it is possible to exceed the limit of 56 hours in the week on the average required by Article 4 of the Convention. It therefore requests the Government to take all necessary steps to bring its legislation into conformity with the requirements of the Convention on this point.

Article 5. The Committee again refers to section 142(2) of the Labour Code, which allows the employer to establish a summarized calculation of working hours over a period not exceeding 6 months for work where a daily calculation is not possible. It also refers to paragraph 4 of the same section, which fixes maximum daily working hours at 12 hours. In this regard it requests the Government to indicate the extent to which average daily hours of work are assured not to exceed the limits set forth in Article 5, paragraph 2, of the Convention and section 136 of the Labour Code.

Part III of the report form. The Committee notes that a working party has been established to draw up a list of work classified as being continuous production processes within the meaning of Article 4 of the Convention. It requests the Government to supply a copy of this list when it is available. It further requests it to supply all the other information called for under this part of the report form.

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The Committee notes the information supplied by the Government in its report and the various amendments to the Labour Code relating to the provisions of the Convention.

Article 2 of the Convention. The Committee notes sections 110 and 111 of the Labour Code under which a worker may conclude a supplementary employment contract with his employer and/or another employer (subject to the agreement of his main employer). This is a contract for the performance of work outside the normal working hours of the main contract.

The Committee requests the Government to indicate how respect for the legal limit of hours of work, fixed in accordance with the Convention by section 136 of the Labour Code, is guaranteed in cases of internal and external accumulation of jobs.

Please indicate in addition whether the categories covered by section 139(4) of the Code are comparable to those excluded from the scope of the Convention by Article 2(a).

Articles 4 and 5. The Committee notes that under section 142(2) of the Labour Code, the employer may establish a summarized calculation of working hours for continuous production processes and for work where conditions do not allow a daily calculation and that, under paragraph 4 of the same section, the maximum duration of a work shift under a summarized calculation of working hours may be up to 12 hours.

The Government is requested to indicate in its next report whether this provision applies to the shift work covered by Article 2(c) of the Convention or that covered by Article 4 of the Convention (see also under Article 7 below).

Please indicate also whether the average weekly hours of shift work for continuous production processes and other types of work covered by Article 5 of the Convention remains equal to the normal weekly hours of work as fixed in section 136 of the Labour Code.

The Committee furthermore asks the Government to indicate whether the employer decides unilaterally to establish a summarized calculation of working hours for the types of work covered by Article 5 of the Convention or whether his decision is made after consultation and agreement with workers' organizations.

Article 6, paragraph 1(b). The Committee notes that temporary exceptions from the normal hours of work are determined by the law (section 144 of the Labour Code) and not by public authority regulations after consultation with the organizations of employers and workers concerned as laid down in this Article of the Convention.

It also notes that only temporary exceptions for the performance of intensive seasonal work are subject to the prior permission of the labour inspectorate (section 145 of the Code).

The Committee wishes to emphasize again the value of measures designed to restrict the circumstances in which temporary exception may be authorized and to call the Government's attention to the need for appropriate regulation by industry and by profession as prescribed in the Convention, in particular, to ensure that the existence of the circumstances in question is checked and that any abuses noted are sanctioned (in this regard, see Hours of work, General Survey of the Committee of Experts, 1967, paragraph 188).

The Committee trusts that the Government will not fail to take the measures needed to give effect to this provision of the Convention in regard to the determination of temporary exceptions, as it has done by means of section 139(4) and (5) of the Labour Code for the permanent exceptions covered by Article 6(1)(a) and requests it to keep the ILO informed of any progress made in this direction.

Article 8. Please annex to the report examples of the notices and records mentioned in this Article.

Point III of the report form. Article 7(1)(a). The Committee notes that no official list of processes classed as being necessarily continuous in character in the meaning of Article 4 has been drawn up. It trusts that such a list will be sent to the ILO shortly. Furthermore, the Government is requested to supply full information on the practice of any agreements such as those provided in Article 5 on the regulations laid down under Article 6 and their application, to describe the methods followed for consultation of employers' and workers' organizations on this point and to send any text of this type adopted on the subject.

Point VII. Please indicate in each of the subsequent reports on application of the Convention whether the employers' and workers' organizations to which they have been sent have made observations and provide the ILO with a summary of any such observations.