Solicitud directa (CEACR) - Adopción: 2013, Publicación: 103ª reunión CIT (2014)

Convenio sobre el descanso semanal (industria), 1921 (núm. 14) - Región Administrativa Especial de Hong Kong (Ratificación : 1997)

Articles 4 and 5 of the Convention. Total or partial exceptions – Compensatory rest. The Committee recalls its previous comment with regard to voluntary work on rest days, in which it pointed out that section 20 of the Employment Ordinance (Chap. 57) that provides that an employee may, either at his/her own request or at the request of the employer, perform work on a weekly rest day without receiving compensatory rest, is not fully consistent with the Convention and its requirement for compensatory rest periods to be granted, as far as possible, in all cases of suspensions or diminutions of the weekly rest. In this connection, the Committee notes the comments made by the Hong Kong Confederation of Trade Unions (HKCTU), which were received on 30 August 2013 and transmitted to the Government on 17 September 2013. The HKCTU indicates that employers can easily abuse the regulation as it is difficult to prove whether an employee accepts voluntarily or is constrained to work on a rest day, and that in many cases workers are forced to sign an agreement indicating that they are willing to work on a rest day. In its latest report, the Government indicates that the Employment Ordinance provides an employee with the liberty to negotiate on voluntary work on rest days, this flexibility aiming at catering for the divergent circumstances and preferences of individual employees across a wide variety of establishments and industries. The Government adds that the current statutory requirements provide adequate protection for employees’ entitlement to rest days while reasonably sufficient flexibility is allowed for employees to work out suitable arrangements with their employers if it is their wish to work on rest days.

While noting the Government’s explanations, the Committee observes that section 20 of the Employment Ordinance, which practically allows workers to forgo altogether their weekly rest entitlement, if they so wish, in exchange for regular pay, may lead to situations that are contrary to the very principle of weekly rest as one of the best observed of workers’ rights. As the Committee noted in paragraph 159 of its 1964 General Survey on weekly rest, if cash compensation was allowed to become the rule, it would practically have the effect of depriving the workers of the rest to which they are entitled, and this on a continuous basis. The Committee recalls, in this connection, that certain provisions of international labour Conventions seek occasionally to protect workers against what might at first sight appear to be their own “preferences”, in cases, for instance, they are tempted (for reasons of securing an additional financial gain) to renounce elementary protective rights, especially in terms of hours of work, weekly rest and annual holidays. Noting therefore the importance of a 24-hour weekly rest period as an elementary guarantee to safeguard the workers’ health and well-being, the Committee once again invites the Government to consider measures that ensure, on the one hand, that compensatory rest periods are granted in all cases of suspension or diminution of the weekly rest, and, on the other, that section 20 of the Employment Ordinance is not applied in a manner that allows workers to practically relinquish their right to weekly rest for extra pay.