Demande directe (CEACR) - adoptée 2013, publiée 103ème session CIT (2014)

Convention (n° 1) sur la durée du travail (industrie), 1919 - Nicaragua (Ratification: 1934)

Article 2(b) of the Convention. Compressed work week. The Committee recalls its previous comment in which it requested the Government to provide additional information on the situation of an enterprise operating on the basis of a compressed work week (that is four consecutive days of work with daily shifts of 11 hours and 40 minutes, followed by four days of rest), the legality of which was recently examined by the Supreme Court. In its latest report, the Government refers to two decisions of the Constitutional Division of the Supreme Court, Decision No. 1748 of 24 October 2012 and Decision No. 1054 of 20 June 2012, which both upheld the legality of the “four-by-four” or compressed work-week arrangement as long as the overall weekly limit of 48 hours is not exceeded. More concretely, the Supreme Court recognized the legality of flexible working days that exceed eight hours per day provided that they do not total more than 48 hours in a week, taking also into account economic and social realities, the benefits for employers and workers and the general interest of the country. The Government further explains that the Court’s decision seems to have been based on the fact that the compressed working time arrangement in question was a “discontinuous” working day – within the meaning of sections 55 and 63 of the Labour Code – due to the fact that employees were entitled to a 35-minute rest. The Government indicates that following the decision of the Supreme Court, it intends to authorize any similar arrangements that may be concluded between employers and workers.

While noting the Government’s explanations, the Committee is obliged to recall that the Convention lays down a double limit of eight hours in a day and 48 hours in a week and that these limitations should be viewed as strict maximum limits which are not liable to variation or waiver at the free will of the parties. The Committee wishes also to refer to paragraph 213 of the 2005 General Survey on hours of work in which it concluded that “compressed work-week arrangements, where work is performed by two teams in 12-hour shifts, would appear to be incompatible with the requirements of both Conventions Nos 1 and 30, because the daily work may exceed the nine-hour and ten-hour limits prescribed by these two Conventions”. The Committee recognizes that modern flexible working time arrangements tend to call into question the relevance of the restrictions imposed by the Convention on the maximum duration of daily and weekly working hours but wishes to emphasize the importance of reasonable limits and protective safeguards in devising such flexible arrangements. The Committee accordingly hopes that in authorizing compressed work week or other similar arrangements, the Government will pay special attention to ensure that the implementation of such arrangements does not contravene core standards prescribed by the Convention.

Articles 3 and 6(1)(b). Additional hours. The Committee previously noted that the rectification of mistakes for which a worker is held responsible under section 57 of the Labour Code is not a valid ground for authorizing exceptions to the normal limits on hours of work. The Committee accordingly requests the Government to take the necessary steps to amend the legislation in such a way as to respect the requirements of the Convention on this point, and more generally, ensure that overtime work – whether voluntary or not – is only authorized in the limited cases prescribed by the Convention.