General Observation (CEACR) - adopted 2013, published 103rd ILC session (2014)

Subject: Working time

Since the adoption of the Hours of Work (Industry) Convention, 1919 (No. 1), the limitation of hours of work, and more broadly, working-time regulation has been a central concern of the ILO, with a total of 34 Conventions, 25 Recommendations and one Protocol having been adopted on this subject. This body of instruments contain the necessary flexibility to achieve the desired balance between the requirements of work and the protection of workers’ health and private lives. They have also inspired governments to regulate working time and employers’ and workers’ organizations to put in place appropriate arrangements on hours of work and entitlement to leave.

In reviewing the action taken by member States to give effect to these instruments, the Committee has identified many gaps some of which, in certain countries, have continued for many years while in others they are the result of recent reforms. Some governments have justified the non-conformity of certain provisions of national law and practice with the applicable international standards by referring to the rigidity of these standards, work-related constraints in many sectors, the support of the social partners for collectively agreed arrangements, and the freedom of choice that is left to workers.

In the conclusions of its 2005 General Survey on Conventions No. 1 and the Hours of Work (Commerce and Offices) Convention, 1930 (No. 30), the Committee recognized, following its examination of the reports provided by member States, that the content of these Conventions does not fully reflect modern realities and that they do not allow sufficient flexibility for the distribution of working time and rest periods through innovative arrangements adapted to changing occupational needs (for instance, annual averaging of hours of work, compressed working week, etc.). These shortcomings are even more significant in relation to the Conventions concerning the night work of women in industry. The Committee noted at the same time that this assessment in no way undermines the pertinence and importance of minimum standards to limit the maximum authorized hours of work and to regulate compulsory rest periods, distributed over the day, week, month or year, so as to ensure that modern working-time arrangements are not prejudicial to the health of workers or to the necessary work–life balance.

It is important to recall, in this regard, the conclusions of the ILO Tripartite Meeting of Experts on Working-time Arrangements, held in October 2011, which stated that 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 (see TMEWTA/2011/6, page 29). It is also important to recall that instruments specifically addressing the policy of progressively reducing hours of work, such as the Forty-Hour Week Convention, 1935 (No. 47), and the Reduction of Hours of Work Recommendation, 1962 (No. 116), may be particularly relevant with a view to promoting employment creation, especially in periods of crisis and rising unemployment.

The Committee is concerned about the proliferation of standards and practices which tend to generalize the suppression or unconditional postponement of leave, as well as cases of exaggeratedly long hours of work, without consideration being given to the necessary compensation or to implications for health and well-being. Such situations contribute to maintaining high unemployment. The most frequently observed gaps between international standards and national laws and practice include:

• – compensation of overtime hours by rest periods excluding the higher rate of pay envisaged in Conventions Nos 1 and 30;
• – authorization of overtime hours in imprecise terms, resulting in confusion between normal and additional hours of work leading in many cases to excessively long hours of work;
• – denial of compensatory rest for workers employed on the weekly rest day and replacement by extra pay; and
• – the fixing of the weekly rest day and of annual leave in an unpredictable manner, and the arbitrary division of the annual leave into parts.

The Committee notes that while agreements concluded with workers’ representatives and individual arrangements covering hours of work are essential to achieve solutions which reconcile as much as possible the requirements of work and worker protection, their content should reflect the minimum standards established with a view to ensuring compliance in cases of imbalance in individual or collective negotiations between the parties.

The Committee wishes to recall that, in the interest of preserving the coherence and relevance of international labour standards on working time, member States that are parties to revised Conventions could consider ratifying the most up-to-date instruments as approved by the ILO Governing Body. This is, for instance, the case of the Holidays with Pay Convention (Revised), 1970 (No. 132), which revises the standards set out in the Holidays with Pay Convention, 1936 (No. 52), and the Holidays with Pay (Agriculture) Convention, 1952 (No. 101), both of which have been classified as obsolete by the Governing Body.

Taking into account the decisions of the International Labour Conference and the Governing Body concerning the Night Work (Women) Convention (Revised), 1948 (No. 89), the Committee wishes to encourage member States which have ratified that Convention to ratify the Night Work Convention, 1990 (No. 171), which focuses on the protection of all night workers, without distinction on the basis of gender. Over the past decade, only two countries (Luxembourg and Madagascar) have ratified this Convention, and during the last period during which Convention No. 89 could be denounced (2011–12), only two countries (Philippines and Slovenia) did so, with 44 countries still being bound by Convention No. 89.

The Committee also regrets that many countries are still bound by the Night Work (Women) Convention, 1919 (No. 4), and the Night Work (Women) Convention (Revised), 1934 (No. 41), which have been declared obsolete by the ILO Governing Body. The Committee notes that there were no denunciations of Convention No. 41 during the last period that it was open to denunciation (2006–07), leaving 15 member States which are still bound by its provisions, while 27 countries are still parties to Convention No. 4, for which the most recent denunciations were received from Peru in 1997 and Lithuania in 2003.

Finally, the Committee recalls that Conventions Nos 41 and 89 will next be open to denunciation for a period of 12 months as from 22 November 2016 and 27 February 2021, respectively, whereas Convention No 4 may be denounced at any time. The Committee also recalls that Convention No. 171 does not formally revise Convention No. 89 and, therefore, the ratification of Convention No. 171 does not involve the automatic denunciation of Convention No. 89. The Committee wishes to draw this matter to the attention of the Governing Body with a view to examining the possibility of initiating an information and sensitization campaign to ensure that before 2020 all member States parties to Conventions Nos 4, 41 and 89 bring their national laws and practice up to date and align them with the standards prescribed by Convention No. 171.