Demande directe (CEACR) - adoptée 2009, publiée 99ème session CIT (2010)

Convention (n° 47) des quarante heures, 1935 - Kirghizistan (Ratification: 1992)

The Committee notes the adoption of the Act of 4 August 2004 issuing the Labour Code. It requests the Government to provide information on the outcome of the prior consultations held with the representative organizations of employers and workers in the context of this legislative reform, particularly with regard to the regulation of working time.

Article 1 of the Convention. Forty-hour week. The Committee notes that sections 101 and 106 of the Labour Code provide for the possibility of unlimited hours of work for certain categories of workers, to be determined by collective agreement or by contract, or in the internal rules of the establishment concerned. It requests the Government to provide further information on the categories concerned.

Averaging of hours of work. The Committee notes that section 103 of the Labour Code allows the averaging of hours of work where it is not possible, for operational reasons, or is not economically advantageous to follow normal working time arrangements for particular categories of workers. In this case, the average weekly hours of work over the selected reference period, which may be a maximum of one year, may not exceed 40 hours. However, the Committee notes that the Labour Code does not determine any absolute limit to the daily or weekly hours of work in the context of such working time arrangements. It draws the Government’s attention to the negative consequences that excessive daily or weekly hours of work may have on workers’ health and on the balance between private and working life. It therefore considers that the averaging of hours of work over a reference period which may be as long as a whole year allows too many exceptions to the principle of the 40-hour week and makes it difficult to achieve the objective of the progressive reduction of working time. Furthermore, the introduction of such a system for the arrangement of working time should only be possible in well-determined cases. The Committee refers to in this respect to Paragraph 12 of the Reduction of Hours of Work Recommendation, 1962 (No. 116), which indicates that the calculation of hours of work as an average over a period longer that one week may be permitted “when special conditions in certain branches of activity or technical needs justify it”. The Committee considers that the provisions of section 103 of the Labour Code are too vague in this respect. The Committee therefore requests the Government to provide detailed information on the systems for the arrangement of working time established under section 103 of the Labour Code, including particulars of the number of workers and the types of enterprises concerned. The Government is also requested to indicate the measures adopted or envisaged to reduce the daily hours of work authorized and the reference period in the context of such systems.

Overtime hours. The Committee notes that section 100 of the Labour Code provides that the performance of overtime hours requires the written agreement of the worker concerned and enumerates the extraordinary circumstances in which overtime may be allowed. It notes that a worker may not work more that four overtime hours over two consecutive days, but that the Labour Code does not establish a monthly or annual limit for the number of overtime hours allowed. Furthermore, the Committee notes that section 99 of the Labour Code of 2004 envisages the possibility for an employee to work more than the normal limits for hours of work where she or he is engaged in a second job in the enterprise or with another employer. It notes that, in such cases, the overtime hours performed may not exceed four in the day and 20 in the week and observes that these limits are particularly high. The Committee refers in this respect to paragraph 79 of its General Survey of 1984 on working time in which it emphasized that “undue facilitation of overtime, for example, by not limiting the circumstances in which it may be permitted or by allowing relatively high maximums, could in the most egregious cases tend to defeat the Recommendation’s objective of a social standard of a 40-hour week and make irrelevant the provisions as to normal working hours”. The Committee therefore requests the Government to provide further information on the effect given to the provisions of the Labour Code respecting the regulation of overtime hours, and particularly on the measures adopted or envisaged to set a reasonable limit to the number of overtime hours allowed, including in cases where the worker concerned is engaged in a second job.

Finally, the Committee takes this opportunity to raise a point that is not explicitly covered by the Convention, but which in its view is of great importance for the regulation of working time. It notes that section 94 of the Labour Code only establishes absolute limits to daily hours of work for certain categories of workers (young workers, students, persons with disabilities, persons engaged in arduous or hazardous types of work) or in the context of the six-day working week, and that no limit is established where the five-day week is applied in the establishment concerned. The Committee wishes to emphasize that the establishment of a maximum limit to daily hours of work is as important as the determination of a weekly limit. It draws the Government’s attention to the provisions of the Hours of Work (Industry) Convention, 1919 (No. 1), and the Hours of Work (Commerce and Offices) Convention, 1930 (No. 30), which have not been ratified by Kyrgyzstan, but which nevertheless conserve the value of a recommendation and which limit the normal working day to eight hours. If it deems it appropriate, the Government could envisage the possibility of establishing such a limit to daily hours of work in the context of the five-day week, as it has done for the six-day week, in consultation with the representative organizations of employers and workers.

Part V of the report form. Application in practice. The Committee requests the Government to provide up to date information in its next report on the application of the Convention in practice including, for instance, extracts from reports of the labour inspection services containing information on the number and nature of the contraventions reported with regard to hours worked in excess of the 40-hour week; statistics on the categories and number of workers to whom the principle of the 40-hour week has been applied and the number of overtime hours worked in excess of the 40-hour week by these workers; the categories and number of workers to whom the principle of the 40-hour week has not as yet been applied and the normal hours of work of these workers, and the number of overtime hours worked; copies of studies or official reports on questions relating to working time, particularly with regard to the reduction of working time in connection with new technologies or as an employment policy measure, especially in the context of the economic crisis that is currently affecting the global economy; and, finally, information on systems of working time arrangements envisaged in recent collective agreements.