Observation (CEACR) - adopted 2011, published 101st ILC session (2012)

Hours of Work (Industry) Convention, 1919 (No. 1) - Romania (Ratification: 1921)

Article 6(2) of the Convention. Overtime pay. The Committee notes the observations made by the National Trade Unions Block (BNS) concerning the application of the Convention, which were received on 1 September 2010, and also the Government’s reply to these observations, which was received on 18 January 2011. According to the BNS, even though weekly hours of work are clearly regulated by the Labour Code and the relevant European Union (EU) directive, there is a worrying failure to observe these provisions, especially in the imposition, in breach of the regulations, of overtime hours that do not qualify for compensatory rest or for extra payment. It notes that the Government in its reply recalls the provisions of the Labour Code relating to compensation for overtime and points out that any infringement of these provisions is liable to incur a fine and that any employee who considers that his/her rights have been infringed may take legal action. The Committee recalls its previous comment concerning the application of Article 6(2) of the Convention, in which it emphasized that, regardless of whether compensatory rest is granted, the rate of pay for overtime must in any case be at least 25 per cent higher than the normal rate. The Committee drew the Government’s attention to the fact that the Labour Code only provides for a higher rate of pay if the worker concerned has been unable to take paid rest during the 30-day period following the overtime worked. It notes that Act No. 40/2011 of 31 March 2011 has increased this period from 30 to 60 days. The Committee requests the Government to provide detailed information in its next report in reply to its direct request of 2008 concerning the application of Article 6(2) of the Convention, and also regarding the steps taken to ensure the observance of the corresponding provisions of the Labour Code in practice.

The Committee also notes the more general remarks made by the BNS concerning the draft amendments to the Labour Code, which were under examination at the time. It notes that the BNS described as worrying the Government’s intention to make the Labour Code more flexible, including with regard to the regulation of hours of work. It notes the Government’s indication in reply to these remarks that the draft amendments formed part of the commitments made by Romania vis-à-vis the EU. The Committee notes that these amendments have been adopted since then, becoming Act No. 40/2011 of 31 March 2011. It notes that the Act, apart from extending the period in which overtime can be compensated, as referred to above, also extends the reference period from three to four months during which maximum weekly working hours (including overtime) can be averaged. The Committee notes that the Office, in its technical comments on the draft amendments, sent to the Government in January 2011, emphasized the fact that the planned amendments to the Labour Code did not deal with the issues raised by the Committee in its comments of 2008. Moreover, the Committee understands that Act No. 40/2011 was adopted by Parliament under an accelerated procedure and that the draft Act was criticized by both employers’ and workers’ organizations. The Committee requests the Government to supply information on the consultations held with the social partners concerning the provisions of the aforementioned draft Act relating to hours of work. Finally, the Committee requests the Government to reply in detail to the observation and direct request of 2008 and indicate the measures it plans to take on these issues in order to ensure that the national legislation is in full conformity with the Convention.

Finally, the Committee draws the Government’s attention to the conclusions of the ILO Tripartite Meeting of Experts on Working Time Arrangements, held in October 2011, according to which 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. The Experts also emphasized the importance of working time, its regulation, and organization and management, to: (a) workers and their health and well-being, including opportunities for balancing working and non-work time; (b) the productivity and competitiveness of enterprises; and (c) effective responses to economic and labour market crises.

[The Government is asked to reply in detail to the present comments in 2012.]