Direct Request (CEACR) - adopted 2011, published 101st ILC session (2012)

Holidays with Pay Convention, 1936 (No. 52) - Comoros (Ratification: 1978)

Article 2(1) and (4) of the Convention. Deferral of the annual paid holiday. For many years, the Committee has been commenting on the need to adopt provisions giving full effect to Article 2(1) and (4) of the Convention. In its report, the Government indicates once again that the Bill revising the Labour Code stipulates, under section 151, that workers may opt to accumulate their paid annual leave for two consecutive years, provided that at last six working days of the accumulated period of holidays are taken each year. The Committee hopes that the Bill of the new Labour Code will be adopted in the very near future and requests the Government to provide a copy of the text as soon as it is adopted.

Article 2(3). Exclusion of holidays and interruptions of work due to sickness from the calculation of paid annual leave. Further to its previous observations on this point, the Committee notes the Government’s indication that the Bill revising the Labour Code stipulates that interruptions of work due to sickness are not counted as part of paid annual leave. According to the Government’s report, section 143 of this Bill states that “for the purposes of calculating the duration of holiday entitlement, regular absences for occupational accidents or diseases, as well as rest periods for women giving birth and in mourning, provided for under section 142, shall be assimilated to one month of effective service; and within the limit of six months, the interruptions shall not be deducted from the number of days of annual holiday granted to the worker”. The Committee notes that under this section, the absences listed are assimilated to periods of effective service giving entitlement to holiday. It nevertheless recalls that Article 2(3) of the Convention refers to days of leave that may not be included in annual holiday with pay, and not to the calculation of the period of effective service giving entitlement to leave; it rather provides that public holidays and interruptions of attendance at work due to sickness may not be deducted from the number of days of leave granted to the worker. The Committee trusts that the Government will take all the necessary measures in the very near future to adopt the legislative provisions giving full effect to this Article of the Convention.

Article 4. Invalidity of agreements to relinquish the right to an annual holiday with pay, or to forego such a holiday. The Committee notes that the Bill revising the Labour Code, submitted to the Office in 2010 for comment, contains no provision giving effect to Article 4 of the Convention which stipulates that agreements relinquishing the right to an annual holiday with pay, or foregoing such a holiday, are void. The Committee observes moreover that a provision of this nature is reflected in section 130 of the Code at present in force. It therefore requests the Government to indicate the measures, either taken or envisaged, in order to give full effect to this Article of the Convention.

Article 6. Entitlement to compensation for paid leave upon termination of a contract. The Committee notes that under section 130 of the Labour Code in force, compensation for paid leave may be granted to a worker unable to benefit from annual leave before the termination of the contract. It nevertheless notes that the Bill for revising the Labour Code does not take up this provision. The Committee requests the Government to indicate any measures taken or envisaged to ensure that the Labour Code, in its revised version, will provide for compensation for workers who terminate their employment relationship before having taken leave.

Furthermore, the Committee notes the Government’s statement that it does not consider the ratification of the Holidays with Pay Convention (Revised), 1970 (No. 132), to be a priority. It nevertheless feels bound to recall the decision of the ILO Governing Body, which considered that the Holidays with Pay Convention, 1936 (No. 52), and the Holidays with Pay (Agriculture) Convention, 1952 (No. 101), were obsolete. It invited the States parties to both these Conventions to ratify Convention No. 132 because despite the fact that it is not fully up to date, it remains relevant in certain respects. The Committee requests the Government to keep the Office informed of any decision it might take to ratify Convention No. 132.

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 twenty-first 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.