Hours of Work (Commerce and Offices) Convention, 1930 (No. 30) - Mozambique (RATIFICATION: 1977)

CMNT_TITLE

In order to provide a comprehensive view of the issues relating to the application of ratified Conventions on working time, the Committee considers it appropriate to examine Conventions Nos 1 and 30 (hours of work) together.

Legislative developments. The Committee notes that in its report on Convention No. 14, the Government indicates that the Labour Act No. 23/2007 of 1 August 2007 is under revision. In this context, the Committee requests the Government to take its comments, set out below, into account when finalizing the current legislative reform and to provide information on any legislative development relating to the abovementioned reform. It recalls that the Government can avail itself of the technical assistance of the ILO in this process.

Article 1 of Convention No. 1. Scope of application. The Committee had previously requested the Government to indicate the legal provisions regulating working time in mining work, port work and maritime work, which are currently excluded from the scope of application of the Labour Act. The Committee notes that the Government indicates in its report that the Decree No. 13/2015 of 3 July 2015 approved the Mining Labour Regulations, the Decree No. 46/2016 of 31 October 2016 approved the Dock Work Regulations, and the Decree No. 50/2014 of 30 September 2014 approved the Maritime Labour Regulations. The Committee takes note of this information, which addresses its previous request.

Article 5 of Convention No. 1 and Article 6 of Convention No. 30. Variable distribution of working hours over periods longer than a week. In previous comments, noting that section 85(4) of the Labour Act provides that the average weekly working time of 48 hours may be calculated using a reference period not exceeding six months, the Committee recalled that the Conventions permit the averaging of hours of work only in exceptional cases, and require either a prior agreement between workers’ and employers’ organizations to which Governments may give the force of regulations (Article 5(1) of Convention No. 1) or regulations made by the public authority (Article 6 of Convention No. 30). The Committee notes that the Government does not provide any relevant information on this issue. The Committee requests the Government to take the necessary measures to restrict the introduction of the averaging of hours of work over a reference period longer than a week to exceptional circumstances and to make it conditional upon the procedure of authorization required by the Conventions.

Article 6(1)(a) and (b) and (2) of Convention No. 1 and Article 8 of Convention No. 30. Permanent and temporary exceptions. Prior consultations with social partners. In previous comments concerning sections 86(1) and 90(2) of the Labour Act, which provide for permanent and temporary exceptions to normal working hours, the Committee had requested the Government to provide information on how effect is given to the Conventions’ requirement to determine these exceptions by regulations made only after consultation with the workers’ and employers’ organizations concerned. In this respect, the Committee notes that the Government indicates that before the approval of any regulation establishing permanent or temporary exceptions to normal working hours, instruments are examined, and agreements reached by tripartite constituents in the framework of the Consultative Labour Commission (CCT) created by Decree No. 7/94 of 9 March 1994. The Committee takes note of this information, which addresses its previous request.

Articles 3 and 6(1)(b) of Convention No. 1 and Article 7(2) of Convention No. 30. Temporary exceptions. Circumstances. The Committee had previously noted that: (i) section 85(3) of the Labour Act provides that under collective labour regulation instruments, normal daily working hours may be increased in exceptional cases by up to a maximum of four hours; and that (ii) section 86(3) of the Labour Act provides that increases in the maximum limits of normal working hours may be established by a government decision on the recommendation of the labour minister and the minister who oversees the sector of activity in question. In this respect, the Committee had observed that neither section 85(3) nor section 86(3) of the Labour Act clearly define the exceptional circumstances under which normal hours of work may be temporarily increased.

Moreover, the Committee notes that section 9(3) of the Dock Work Regulations provides that by collective agreement, normal working hours may be increased up to 12 hours, not exceeding 56 hours per week. It also notes that section 8(2) of the Mining Labour Regulations provides that normal working hours can be increased or reduced by Government determination or by instrument of collective labour regulation under the terms of the Labour Act, provided that they are no longer than 12 hours per day and 56 hours per week. The Committee observes that these two provisions do not refer to the exceptional character of those increases in normal working hours, and do not specify the circumstances under which resort to those increases is allowed. The Committee wishes to emphasize the importance of national legislation and practice restricting recourse to exemptions from the maximum limits to hours of work (namely eight hours in the day and 48 hours in the week) to cases of clear, well-defined and limited circumstances (2018 General Survey on working time instruments, paragraph 119). The Committee requests the Government to take the necessary measures to ensure that the legislation providing for temporary exceptions to normal working hours, either general or for specific categories of workers like dock and mining workers, clearly define the exceptional circumstances in which normal working hours are temporarily increased. The Committee also requests the Government to supply information on progress made in this regard.

Article 6(2) of Convention No. 1 and Article 7(3) of Convention No. 30. Additional hours of work allowed. In previous comments, the Committee had noted that section 86(3) of the Labour Act providing for temporary exceptions to normal working hours does not fix any limit to additional hours allowed in each case, as required by Article 6(2) of Convention No. 1. It had also noted that section 90(3) of the Labour Act does not fix any daily limit to additional hours in case of temporary exceptions, as required by Article 7(3) of Convention No. 30. The Committee notes that the Government does not provide any information in this regard. The Committee requests the Government to take the necessary measures to ensure that regulations made by public authority determine: (i) the maximum number of additional hours allowed in case of temporary exceptions (Article 6(2) of Convention No. 1); and (ii) the maximum number of daily additional hours of work allowed in case of permanent exceptions (Article 7(3) of Convention No. 30).

Article 6(2) of Convention No. 1. Compensation for overtime. The Committee notes that the Dock Work Regulations (section 9(2), (3) and (4)) and the Mining Labour Regulations (sections 8(2) and 15) provide for increases in normal working hours, but do not seem to contain provisions on the compensation for those additional hours. The Committee notes that section 115 of the Labour Act provides that overtime performed until eight o’clock at night shall be paid at the normal wage rate plus 50 percent, that overtime performed between eight o’clock at night and the start of the normal working hours of the following day shall be paid at the normal wage rate plus 100 percent, and that exceptional work shall be paid at the normal wage rate plus 100 percent. The Committee requests the Government to indicate whether section 115 of the Labour Act applies to dock and mining workers in cases where their normal working hours are increased.

Article 8(2) of Convention No. 1 and Articles 11(3) and 12 of Convention No. 30. Penalties. In previous comments, the Committee had requested the Government to indicate the sanctions provided for in case of infringement of the working time legislation. The Committee notes that the Government indicates that, regarding infringements of the working time legislation, general sanctions provided for in section 267 of the Labour Act are applicable on a case-by-case basis. The Committee takes note of this information, which addresses its previous request.

CMNT_TITLE

Articles 6, 7, 8 and 11 of the Convention. Averaging of hours of work – Temporary exceptions – Sanctions. The Committee requests the Government to refer to the comments made under Articles 5, 6 and 8 of the Hours of Work (Industry) Convention, 1919 (No. 1).

CMNT_TITLE

The Committee notes the adoption of a new Labour Act No. 23/2007 of 1 August 2007, which basically reproduces the provisions on hours of work of the previous Labour Act No. 8/98 of 20 July 1998.

Article 6 of the Convention. Averaging of hours of work. The Committee notes that section 85(4) of the Labour Act provides that the average weekly working time of 48 hours may be calculated using a reference period not exceeding six months. However, it recalls that the Convention only permits the averaging of hours of work in exceptional circumstances, and requires the adoption of regulations by the public authority after consultation with the workers’ and employers’ organizations concerned. The Committee requests the Government to indicate how it is given effect to these requirements of the Convention both in law and in practice.

Article 7, paragraph 2. Temporary exceptions. The Committee notes that section 85(3) of the Labour Act provides that under collective labour regulation instruments, normal daily working hours may be increased in exceptional cases up to a maximum of four hours, provided the weekly working time shall not exceed 56 hours. The Committee notes that this provision refers to some undefined “exceptional cases” and sets only daily and weekly limits which can imply annual working hours that are far too high and which could be contrary to the spirit of the Convention. In this regard, the Committee wishes to refer to paragraph 144 of its General Survey of 2005 on hours of work in which it noted that even though the establishment of specific limits to the total number of additional hours is left to the competent authorities, this does not mean that such authorities have unlimited discretion in this regard. Such limits must be reasonable and they must be prescribed in line with the general goal of Conventions Nos 1 and 30, namely to establish the eight-hour day and 48-hour week as a legal standard of hours of work in order to provide protection against undue fatigue and to ensure reasonable leisure and opportunities for recreation and social life. The Committee therefore requests the Government to specify the exceptional cases which section 85(3) of the Labour Act is meant to cover and to take all necessary measures in order to establish, within reasonable limits, the maximum number of additional hours which may be allowed in the year under this provision of the Labour Act.

Moreover, the Committee notes that section 86(3) of the Labour Act provides that increases in the maximum limits on normal working hours may be established by a government decision on the recommendation of the minister in charge of labour and the minister who oversees the sector of activity in question. The Committee considers that this provision provides for the extension of working hours in terms far more general than the exceptions defined under Article 7 of the Convention. The Committee therefore requests the Government to specify the conditions under which and the limits within which such discretionary power may be exercised and to indicate whether any such ministerial decisions have so far been issued.

Article 7, paragraph 3. Additional hours of work allowed in respect of permanent exceptions. With regard to overtime, the Committee notes that section 90(3) of the Labour Act provides that each employee may perform up to 96 hours of overtime per quarter, but no employee shall perform more than eight hours of overtime per week nor exceed 200 hours per year. The Committee requests the Government to specify the legal provision determining the maximum additional hours of work that may be allowed in the day, as required by this Article of the Convention.

Article 8. Prior consultations with social partners. The Committee notes that there seems to be no provision in the Labour Act calling for consultations with employers’ and workers’ organizations prior to the adoption of regulations establishing permanent or temporary exceptions. The Committee requests the Government to provide additional explanations in this regard.

Article 11, paragraph 3, and Article 12. Penalties. The Committee notes that the legislation is silent as to whether the employment of any person outside the hours of work fixed or during the rest periods constitutes an offence. Furthermore, the Committee notes that sanctions are provided for in sections 267 and 268 of the Labour Act, but no specific provision is made for failure to comply with the rules on hours of work. The Committee therefore requests the Government to indicate whether it is an offence to employ any person outside the hours of work fixed or during the rest periods as well as the type of sanctions provided for in case of infringement of the working time legislation.

Part V of the report form. Practical application. The Committee notes the statistical information provided by the Government concerning labour inspection results in general. The Committee would be grateful if the Government would continue to provide information on the practical application of the Convention, including, for instance, extracts from official reports and information on any difficulties encountered in the implementation of the Convention.