Replies received to the issues raised in a direct request which do not give rise to further comments (CEACR) - adopted 2020, published 109th ILC session (2021)

The Committee notes the information provided by the Government, which answers the points raised in its previous direct request and has no further matters to raise in this regard.

Direct Request (CEACR) - adopted 2013, published 103rd ILC session (2014)

Article 1 of the Convention. The principle of the 40-hour week. The Committee notes the Government’s reference to a finalized version of the new draft Labour Code. As this text has not been made available to the Office, the Committee is not in a position to assess the compatibility of its provisions with the principle of the 40-hour week laid down in the Convention. The Committee hopes that in considering flexible working time arrangements, the Government will ensure that the new draft Labour Code does not authorize practices that would possibly lead to unreasonably long hours of work and would thus directly contradict the principle of progressive reduction of hours of work. The Committee recalls, in this respect, Paragraph 12 of the Reduction of Hours of Work Recommendation, 1962 (No. 116) which indicates that averaging should be permitted only when special conditions in certain branches of activity or technical needs justify it. It also recalls paragraph 79 of its General Survey of 1984 on working time in which it pointed out 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 requests the Government to keep the Office informed of any new developments in the process of adopting the new Labour Code, and to transmit a copy once it has been adopted.

Direct Request (CEACR) - adopted 2013, published 103rd ILC session (2014)

Article 5 of the Convention. Total or partial exceptions – Compensatory rest. The Committee requests the Government to refer to the comments made under Article 8 of the Weekly Rest (Commerce and Offices) Convention, 1957 (No. 106).

Direct Request (CEACR) - adopted 2013, published 103rd ILC session (2014)

Article 8(3) of the Convention. Temporary exemptions – Compensatory rest. The Committee notes that section 71 of the Labour Code provides that working on weekends is prohibited, except in exceptional circumstances (for instance, to prevent effects of natural disasters, accidents, loss or damage to property or to perform urgent unforeseen work) and with the consent of the workers’ representatives. It also notes that section 72 provides that work performed on a weekend may be compensated, if the parties so agree, either by another day of rest or by cash payment at double the normal hourly or daily wage rate. The Government indicates, in this connection, that if an employee is required to work on a Saturday, they will still have a rest period of 24 consecutive hours, as prescribed by the Convention. The Government also indicates that due to the inadequate levels of salaries in Ukraine, employees generally prefer the extra pay for work on a weekly rest day. The Committee is bound to recall that considering the importance of weekly rest for the worker’s health and well-being, the Convention requires compensatory rest to be granted in all cases of authorized exceptions to the normal weekly rest scheme – irrespective of any monetary compensation. The Committee therefore considers that as it currently reads, section 72 of the Labour Code gives only partial effect to the requirements of this Article of the Convention. The Committee accordingly requests the Government to take appropriate action to bring the national legislation into line with the Convention on this point.

Direct Request (CEACR) - adopted 2012, published 102nd ILC session (2013)

Article 1 of the Convention. The principle of the 40-hour week. The Committee recalls its previous comment, in which it noted the comments of National Forum of Trade Unions of Ukraine (NFTUU) and the Confederation of Free Trade Unions of Ukraine (KVPU), dated 8 July 2010, concerning the provisions on hours of work contained in the draft new Labour Code, which is expected to replace the existing Labour Code of 1971. The Committee notes the new comments of the KVPU dated 5 July 2012, according to which section 143 of the draft new Labour Code practically allows for unlimited daily and weekly working hours. The KVPU also indicates that the provision in question authorizes the averaging of hours of work setting the maximum duration of work at 12 hours a day and 48 hours a week which contravenes this Convention. In its reply, the Government indicates that section 143 of the draft Labour Code authorizes the averaging of hours of work, provided that hours of work do not exceed on the average the normal limits of eight hours a day and 40 hours a week. The Government also indicates that a similar provision is to be found in section 61 of the Labour Code currently in force. The Committee observes, however, that the draft legislation does not appear to specify a maximum reference period for the purposes of averaging and also that the maximum duration of daily work fixed at 12 hours may be exceeded based on the worker’s consent. The Committee further notes that whereas the existing Labour Code requires an agreement with representative workers’ organizations at the enterprise level before the introduction of an averaging arrangement, the draft Labour Code does not contain analogous safeguards. The Committee once again refers to paragraphs 12 and 14 of the Reduction of Hours of Work Recommendation, 1962 (No. 116), which indicate that the principle of the 40-hour week should not be defeated by undue recourse to averaging or broad derogation possibilities. The Committee accordingly requests the Government to provide additional explanations on the conditions under which and the limits within which the averaging of hours of work and overtime work may be authorized under the draft new Labour Code in the light of the recognized principle of the 40-hour week. It also requests the Government to keep the Office informed of any new developments in the process of adoption of the new Labour Code, especially as regards the provisions on hours of work.

Direct Request (CEACR) - adopted 2010, published 100th ILC session (2011)

Article 1 of the Convention. Forty-hour week. The Committee notes the observations made by the National Forum of Trade Unions of Ukraine (NFTUU) and the Confederation of Free Trade Unions of Ukraine (KVPU) concerning a new draft Labour Code which is expected to be examined shortly by the Parliament of Ukraine. The two workers’ organizations allege that draft section 143 of the Code allows the settings of unlimited daily and weekly working hours. They also point out that the maximum duration of weekly work may exceed the 48-hour limit not only on the basis of an enterprise-level collective agreement but also by means of an employer’s regulatory act. Under the new provisions, therefore, the employers would have every interest not to have trade unions at the enterprise, so that they can decide unilaterally on matters such as working hours and wages through regulatory acts. The Committee requests the Government to provide any comments it may wish to make in response to the observations of the NFTUU and the KVPU and recalls that the Government may avail itself of the advisory services of the Office concerning the drafting of new legislation having due regard to relevant international labour standards.

Direct Request (CEACR) - adopted 2010, published 100th ILC session (2011)

Article 6 of the Convention. Right to weekly rest. The Committee notes the observations made by the National Forum of Trade Unions of Ukraine (NFTUU) concerning a new draft Labour Code that is expected to be examined shortly by the Parliament of Ukraine. The NFTUU refers to draft section 160 of the Code, which provides that public servants may be called on duty at any time by order of the director, and considers that this provision may deprive public servants of their right to weekly rest as no provision is made for compensatory rest. In addition, the NFTUU observes that draft section 232 of the Code provides that work performed on the day of rest may not be considered as working time in case the employee refuses to take an alternative rest day. The Committee requests the Government to provide any comments it may wish to make in response to the observations of the NFTUU and recalls that the Government may avail itself of the advisory services of the Office concerning the drafting of new legislation having due regard to relevant international labour standards.

Direct Request (CEACR) - adopted 2009, published 99th ILC session (2010)

Article 5 of the Convention. Total or partial exceptions. Compensatory rest. The Committee notes that section 72 of the Labour Code provides that work performed on a weekly rest day may be compensated, if the parties so agree, either by another day of rest or by a cash payment at double the normal hourly or daily rate calculated in accordance with section 107 of the Labour Code. The Committee wishes to recall, in this connection, that the Convention requires compensatory rest to be granted, as far as possible, to those performing work on a weekly rest day, irrespective of any extra pay which may be offered in addition. The Committee therefore considers that leaving it to the discretion of the worker concerned to choose between a cash compensation at 200 per cent of the normal wage rate or another day of rest is not the best manner to ensure that workers enjoy every week the minimum of rest and leisure they need in order to preserve their health and well-being, and does not give full effect to either the letter or the spirit of the Convention. It accordingly requests the Government to consider favourably the adoption of appropriate measures in order to bring its legislation into conformity with the Convention on this point.

Part V of the report form. Application in practice. The Committee notes the statistical information provided by the Government in its report, in particular the indication that 11.3 per cent of all infringements observed by the labour inspection services relate to non‑observance of hours of work and periods of rest, and that the most frequent violations with respect to weekly rest are the absence of permission of the trade union committee for work performed on a day of weekly rest and the non-payment of compensation at double the rate in that case. The Committee would appreciate if the Government would continue providing up to date information concerning the practical application of the Convention, including, for instance, statistics on the approximate number of workers covered by the relevant legislation, labour inspection results showing the number of infringements of the weekly rest legislation observed and sanctions imposed, copies of collective agreements containing clauses on weekly rest, etc.

Direct Request (CEACR) - adopted 2009, published 99th ILC session (2010)

Article 7, paragraph 2, and Article 8, paragraph 3, of the Convention. Compensatory rest. Further to its previous comment concerning section 72 of the Labour Code, which is not fully consistent with Articles 7 and 8 of the Convention since it provides that work performed on a day of weekly rest may be compensated either by another rest day or by supplementary payment at double the normal rate, as the parties may agree, the Committee recalls that the Convention requires in all cases of permanent or temporary exemptions from the normal weekly rest scheme a compensatory rest period of a total duration at least equivalent to 24 hours. It therefore hopes that, in the ongoing process of the revision of the Labour Code, the Government will not fail to take the necessary steps in order to bring its legislation into full conformity with the requirements of the Convention in this regard.

In addition, the Committee notes that the Labour Code does not seem to regulate when the compensatory rest is to be taken or whether it should be continuous. It recalls that in the absence of specific rules in this connection, the compensatory rest risks to be unduly postponed or be divided into short periods. It is in this sense that Paragraph 3(a) of the Weekly Rest (Commerce and Offices) Recommendation, 1957 (No. 103), provides that special weekly rest schemes must be established in such a way that it would ensure that persons to whom such schemes apply do not work for more than three weeks without receiving the rest periods to which they are entitled. The Committee therefore requests the Government to provide in its next report additional explanations as to how the compensatory rest is implemented in practice, and to specify whether any rules have so far been issued concerning the regularity and continuity of such rest.

Part V of the report form. Application in practice. The Committee would be grateful if the Government would provide up to date information on the practical application of the Convention, including for instance, statistics on the number of workers covered by the relevant legislation, labour inspection results showing the number of offences observed and penalties imposed in connection with weekly rest, copies of collective agreements containing provisions on weekly rest schemes, etc.

Direct Request (CEACR) - adopted 2009, published 99th ILC session (2010)

Article 1 of the Convention. Forty-hour week. Averaging of the hours of work. The Committee notes that, while section 50 of the Labour Code limits the normal hours of work to 40 hours per week, section 61 of the Labour Code allows employers, after consulting the trade union representatives, to calculate hours of work as an average in enterprises operating continuously, as well as in certain establishments and for certain types of work, where it is not possible, due to exceptional circumstances, to respect the normal daily or weekly limits on hours of work. It notes that, in such cases, the average weekly hours of work during the chosen reference period may not exceed 40 hours. The Committee notes, however, that the Labour Code establishes no absolute limit on the daily or weekly hours of work in the context of such working time arrangements and that it does not lay down a maximum duration with regard to the reference period (for example, three months). It draws the Government’s attention to the negative effects that an excessively long working day or working week can have on the health of workers and on the balance between their private life and work. In this regard, it refers to the provisions of the Reduction of Hours of Work Recommendation, 1962 (No. 116), which is designed to supplement and facilitate the application of the Convention and which provides, in Paragraph 12(2) that the competent national authorities should fix the maximum length of the period over which the hours of work may be averaged. Noting that the provisions of the Labour Code are too vague on this point, the Committee requests the Government to provide detailed information on the working time arrangements established under section 61 of the Labour Code, including details on the number of workers and the type of enterprises concerned. The Government is also requested to indicate the measures taken or envisaged to limit the weekly and daily hours of work, as well as the reference period, in the context of such arrangements.

Part V of the report form. Application in practice. The Committee notes the information included in the Government’s report that in 2007, the labour inspection services carried out 44,644 inspections in 34,166 establishments. It notes that these inspections resulted in 158,754 violations of the labour legislation being reported, of which 26,618 concerned issues relating to working time. Taking into account the high number of reported violations of the labour legislation, in particular with regard to working time, the Committee requests the Government to provide detailed information in its next report on the results of the activities of the labour inspectorate, in particular with regard to measures taken to reduce the number of violations of the provisions of the Labour Code with regard to hours of work. The Government is also requested to provide information on the categories and number of workers to whom the principle of the 40-hour week has been applied and the number of hours of overtime worked by these workers beyond the 40-hour week; the categories and number of workers to whom the principle of the 40-hour week has not yet been applied and the normal hours of work of these workers, as well as the number of hours of overtime worked; copies of studies or official reports on issues relating to working time, especially the reduction of hours of work linked to new technologies or as an employment policy tool, particularly in the context of the current global economic crisis; and finally, information on the working time arrangements provided for under recent collective agreements.

Direct Request (CEACR) - adopted 2004, published 93rd ILC session (2005)

Article 8, paragraph 3, of the Convention. Compensatory rest. Section 72 of the Labour Code states that compensation for working on a day of weekly rest may take the form of an extra day of rest or supplementary payment. The Committee reminds the Government that the Convention does not allow remuneration in lieu of compensatory periods of rest for work carried out on a day of weekly rest. It requests the Government to undertake the necessary steps in the near future to amend this section of the Labour Code in order to bring it into conformity with Article 8, paragraph 3, of the Convention, and to supply information on the progress achieved in its next report.