Weekly Rest (Commerce and Offices) Convention, 1957 (No. 106) - Costa Rica (Ratification: 1959)

Observation (CEACR) - adopted 2022, published 111st ILC session (2023)

Previous comment on Convention No. 1Previous comment on Convention No. 14Previous comment on Convention No. 106

In order to provide a comprehensive view of the issues relating to the application of the ratified Conventions on working time, the Committee considers it appropriate to examine Conventions Nos 1 (hours of work in industry), 14 (weekly rest in industry) and 106 (weekly rest in commerce and offices) together.

The Committee notes the observations submitted jointly by the Confederation of Workers Rerum Novarum (CTRN), the Costa Rican Workers' Movement Central (CMTC), the General Confederation of Workers (CGT) and the Workers' Unitary Confederation (CUT) and the Costa Rican Trade Union and Social Unity Bloc (BUSSCO), on Convention No. 1, received on 21 August 2022. The Committee also notes the observations of the Costa Rican Federation of Chambers and Associations of Private Enterprise (UCCAEP) on Conventions Nos 1, 14 and 106 submitted together with the Government's report.

Legislative developments. The Committee notes that, in their observations, the CTRN, CMTC, CGT, CUT and BUSSCO indicate that the Legislative Assembly is currently debating the draft Bill No. 21182 on the amendment of sections 136, 142 and 144 and the addition of sections 145 bis and 145 ter of the Labour Code, to update the exceptional periods of work and safeguard the rights of workers. The workers' organizations claim that the draft Bill, among other things: (i) fixes mandatory 12-hour days, which would affect the balance between work, rest and family life; (ii) eliminates the guarantee of pay for overtime; and (iii) incorporates annualized working hours into work that is seasonal, temporary or a continuous process, which would make workers’ periods of work more intense.

The Committee notes that, in December 2021, the Office provided technical assistance regarding the Bill, at the request of the Permanent Committee on Fiscal Affairs of the Legislative Assembly. The Committee trusts that the Act to be adopted on working time will be in full conformity with the provisions of the Convention and requests the Government to provide information on the progress made in the process of adopting the draft Bill. The Committee recalls that the Government may avail itself of ILO technical assistance if it so wishes.

Hours of work

Articles 3 and 6(1)(b) and (2) of the Convention. Temporary exceptions. Circumstances and limits to additional hours. Pay. Bus drivers. Regarding the circumstances in which recourse to overtime is authorized (sections 139 and 140 of the Labour Code), the Committee observes that: (1) neither section 139 nor section 140 of the Labour Code fixes in a precise and exhaustive manner the circumstances in which recourse to overtime is authorized; and (2) section 139(2) provides for unpaid overtime under one circumstance (errors committed by the employee) which is not covered by the Convention. The Committee recalls that the Convention only allows exceptions to the limits on periods of work in case of accident, actual or threatened, or in case of urgent work to be done to machinery or plant, or in case of "force majeure” or to deal with exceptional cases of pressure of work.

Further to its previous comments on bus drivers, the Committee notes the Government's indication in its report that: (i) according to the information provided by the National Labour Inspectorate of the Ministry of Labour and Social Security, 64 infringements of normal hours of work and 107 infringements related to overtime were identified in the road transport sector in general between 2015 and 2021; (ii) with regard to bus companies, during the same period, 309 cases of infringements of all kinds were detected; (iii) as a result of the actions carried out by the National Labour Inspectorate, 257 cases were resolved at the administrative level, 9 cases were resolved at the judicial level, 34 cases are being processed at the judicial level and 9 cases are being processed at the administrative level; in addition, in 191 cases the labour inspectorate's warnings were complied with, while in 42 cases they were not complied with. In this regard, the Committee also notes that in their joint observations, the CTRN, CMTC, CGT, CUT and BUSSCO indicate that: (i) while the regular period of work for bus drivers is eight hours a day, in most bus companies, drivers negotiate 12 hours a day or more with their employers; (ii) in some bus companies, drivers are required to perform tasks related to vehicle maintenance and the management of the money collected, outside their regular period of work, for which they are not paid; and (iii) during an inspection of a road transport company, in response to a number of complaints of labour exploitation, it was found that drivers’ period of work exceeded 12 hours a day, reaching up to 19 hours a day in some cases; it was also found that the company did not pay overtime. In this regard, the Committee notes the UCCAEP's indication that: (i) since the adoption of Act No. 7679 of 1997 repealing section 146 of the Labour Code, the activity of bus drivers has been adjusted to a period of work of eight hours a day; (ii) the cases of infringements detected by the labour inspectorate have been resolved at administrative or judicial level, or are still in process, and therefore there is no evidence of a widespread practice of infringement of periods of work and overtime pay; and (iii) the problem of a lack of bus drivers results in the use of overtime to ensure continuity in the public service.

In this regard, recalling the impact that long hours can have on workers' health and work-private life balance, the Committee refers to the 2018 General Survey concerning working-time instruments, paragraphs 119 and 151.

Consequently, the Committee requests the Government to continue taking the necessary measures, including by revising these provisions of the Labour Code and monitoring compliance with the legislation in force, to ensure that both in law and in practice: (i) recourse to overtime is limited to clear and well-defined circumstances; (ii) reasonable legal limits on overtime are established and enforced; and (iii) such hours are effectively paid, in accordance with the provisions of the Convention. The Committee requests the Government to provide information in this respect, including statistics on labour inspection activities related to hours of work and rest in the road transport sector, including violations found and penalties assessed.

Weekly rest

Articles 4 and 5 of Convention No. 14 and Articles 7 and 8 of Convention No. 106. Permanent or temporary exemptions to weekly rest –Compensatory rest. Further to its previous comments, the Committee notes the Government's indication in its reports that no amendments have been made to section 152(3) of the Labour Code, which provides that work shall be permitted on the weekly rest day, by agreement between the parties, in the case of work which is not arduous, unhealthy or hazardous, and which is carried out in agricultural or livestock breeding grounds, industrial undertakings which require continuity of work owing to the nature of the needs which they satisfy or for obvious public or social interest. The Committee also notes that section 152(5) of the Labour Code provides that in the case of activities of obvious public or social interest and where the worker does not agree to work on rest days, the employer may apply to the Ministry of Labour for authorization to grant rest periods on a cumulative monthly basis, and the Ministry may grant or refuse the authorization requested. The Committee observes that: (i) section 152(5) of the Labour Code does not guarantee the granting of compensatory rest in case of work on the weekly rest day, as the Ministry of Labour may refuse the requested authorization; and (ii) for other activities set out in section 152(3) of the Labour Code, no compensatory rest is provided for. Consequently, the Committee requests the Government to take the necessary measures, including by amending this section of the Labour Code, to ensure that, in the case of exemptions from the principle of weekly rest, all workers are entitled in respect of each period of seven days to compensatory rest of a total duration comprising not less than 24 hours, regardless of any monetary compensation. The Committee also requests the Government to provide information in this regard.

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

Articles 7 and 8 of the Convention. Permanent or temporary exemptions – Compensatory rest. The Committee recalls its previous comments in which it noted that section 150 of the Labour Code, which allows commercial establishments as a rule to remain open on Sundays for half a day, and also section 152, which allows work on the weekly rest days subject to agreement between the parties but makes no provision for compensatory rest, are inconsistent with the Convention. It wishes to point out in this connection that the Convention authorizes exemptions from weekly rest only in conditions that are exhaustively and clearly regulated by the competent authority, and requires that a mandatory period of compensatory rest at least equal to 24 hours be granted where exemptions are made. In its latest report, the Government indicates that, in order to harmonize the national legislation with the provisions of the Convention, it has again requested technical assistance from the Office and plans to start up a dialogue with the sectors concerned and with the support of the competent units. The Committee requests the Government to provide information on any legislative amendments concerning sections 150 and 152 of the Labour Code or that could have an impact on implementation of the Convention.

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

Articles 7 and 8 of the Convention. Permanent and temporary exemptions. Further to its previous comments concerning section 152 of the Labour Code – which does not give full effect to the provisions of the Convention regarding exemptions relating to weekly rest – the Committee notes the Government’s statement that it has requested technical assistance from the Office with a view to drawing up draft legislation aimed at bringing the national legislation into conformity with the provisions of the Convention. The Committee trusts that the Office will be in a position to provide this assistance in the very near future and requests the Government to provide information on any developments in the process of drawing up such draft legislation.

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

Articles 7 and 8 of the Convention. Permanent and temporary exemptions. Further to its numerous comments concerning section 152 of the Labour Code – which does not give full effect to the provisions of the Convention regarding exemptions relating to weekly rest – the Committee notes the Government’s statement that in the case of trading establishments required to constantly provide their services to the public, the competent authorities recommend that enterprises increase their workforce and introduce a system of rotation so that all workers can enjoy a weekly rest day, since Sunday is no longer considered as the sole day of rest. It also notes that workers who are subjected to any infringement have the possibility, through implementing regulations, of reporting it to the labour inspection services. The Committee also notes that the Government has formally requested technical assistance from the ILO Subregional Office in San José in order to designate a specialist for the drawing up of draft legislation which would enable the national legislation to be harmonized with the practice and provisions of the Convention regarding exemptions relating to weekly rest.

In this regard, the Committee recalls that the Convention is based on three basic principles, namely: regularity (a rest period of 24 hours in each seven-day period), continuity (a rest period of at least 24 consecutive hours) and uniformity (the same rest day, in principle, for everyone). It stresses that the Convention only authorizes exemptions in exhaustively-listed circumstances, which are clearly regulated by the competent authority and which do not allow the relinquishment of weekly rest or an agreement between employer and employee to forgo such rest. However, the situation that the Government describes in its report suggests an increasing relaxation of the rules concerning weekly rest which is not in line with the three principles mentioned above. The Committee hopes that the Government will soon be in a position to report on progress in this area and requests it to send copies to the Office of any legislative texts adopted in connection with section 152 of the Labour Code and the exemptions relating to weekly rest granted to workers.

Observation (CEACR) - adopted 2008, published 98th ILC session (2009)

The Committee notes the information provided by the Government concerning the application of Articles 6 (general weekly rest scheme) and 10 (system of inspection and sanctions) of the Convention.

Articles 7 and 8 of the Convention. Permanent and temporary exemptions. Further to its previous comments concerning section 152 of the Labour Code, the Committee notes the Government’s indications that activities of “obvious public or social interest” include, in particular, work in hospitals and clinics, ports and the Electricity Institute of Costa Rica (ICE). It therefore understands that the large majority of trading establishments or establishments in which office work is carried out are not covered by the provision providing for the possibility of working on the weekly rest day by agreement between the parties. However, it notes that, according to the Government’s report, the increase in work carried out on the weekly rest day is due to the constant competition and to an economy which forces trading establishments to remain available to the public most of the time. This implies that work on the weekly rest day is generally permitted and that there are no specific regulations on this subject. Taking into account the fact that the Convention only authorizes exemptions under strict and limited conditions, either due to the inherent need to leave certain establishments open on the rest day (for example, hospitals, hotels, the press, transport and industrial workplaces in which processes are carried on continuously) or where it is required due to exceptional conditions (for example, in case of accident, force majeure or urgent work to premises and equipment), the Committee requests the Government to indicate the measures taken or envisaged to give full effect to these provisions of the Convention. It also requests the Government to indicate whether relevant provisions exist in collective agreements concluded both at the branch and enterprise levels and, if so, to provide copies.

The Committee also notes that the Government refers in its last report to the direct applicability of the Convention in the national legislation, which explains the absence of detailed legislative or regulatory provisions giving effect to the various provisions of the Convention. However, it draws the Government’s attention to the fact that most of the Convention’s provisions are not self-executing and require the adoption of specific measures, in particular to determine the cases in which permanent or temporary exemptions may be granted or to establish special weekly rest schemes (for example, through rotation or the accumulation of days, etc.). In the light of these comments, the Committee once again requests the Government to take the necessary measures to make the appropriate legislative changes to bring section 152 of the Labour Code into full conformity with the provisions of the Convention.

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

Article 6 of the Convention. Weekly rest - General rules. Under the terms of section 150(d) of the Labour Code, commercial establishments may remain open on Sundays until midday (with certain restrictions for establishments in the central canton of San José). In its report, the Government indicates that the weekly rest day has not been established on Sunday by the legislation and that the determination of the rest day remains within the contractual freedom of the employer and the worker. The Committee understands that, in commercial establishments, the weekly rest includes Sunday afternoon. It recalls that all persons to whom the Convention applies shall be entitled to an uninterrupted weekly rest period comprising not less than 24 hours in the course of each period of seven days. The Committee requests the Government to indicate the manner in which compliance with this rule is secured in commercial establishments.

Article 7. Special schemes. The Committee notes the Government’s indication in its report that section 150 of the Labour Code provides for exceptions solely to the prohibition upon employing workers on public holidays and does not affect the rules relating to weekly rest.

The Committee also notes that section 152 of the Labour Code does not establish special schemes within the meaning of Article 7 of the Convention. It provides for the possibility of working on the weekly rest day, by agreement between the parties, in the case of work which is not arduous, unhealthy or hazardous, and which is carried out in agricultural or livestock breeding grounds, industrial undertakings which require continuity of work owing to the nature of the needs which they satisfy or for obvious public or social interest. While it is clear that the first three categories of establishments referred to above do not lie within the scope of application of the Convention, the Committee would be grateful to be provided with additional information on the subject of "activities of obvious public or social interest". It requests the Government to provide examples of such activities and to indicate whether commercial establishments or those in which office work is carried out may be covered by this provision of the Labour Code.

Article 10. Inspection. In the comments that it made previously, the Confederation of Workers Rerum Novarum (CTRN) indicated that commercial establishments tend to remain open at weekends and on public holidays. However, under the terms of section 150(d) of the Labour Code, commercial establishments have to be closed after 12 o’clock on Sunday. The CTRN also alleged that, due to fear of reprisals, workers do not denounce abuses to the labour inspection services. The Committee urges the Government to provide information on the measures adopted to guarantee the effectiveness of the labour inspection system responsible for enforcing the rules relating to weekly rest.

Penalties. Section 608 of the Labour Code provides that acts or omissions committed by employers, workers or their respective organizations which are in violation of the ILO Conventions ratified by Costa Rica and the rules set out in the Labour Code shall be penalized. Furthermore, under section 152 of the Labour Code, an employer who does not comply with the rules on weekly rest is liable to legal sanctions and shall pay the worker double wages for the day concerned. The Committee requests the Government to provide further information on the penalties imposed in practice in cases of violations of the legal provisions on weekly rest.

Part V of the report form. Application in practice. The Committee requests the Government to provide information on the manner in which the Convention is applied in practice, including, for instance, extracts from the reports of the inspection services, statistics on the number of workers covered by the Labour Code and the number and nature of contraventions of the rules on weekly rest.

Bill to amend the Labour Code. The Committee notes that the Government has formulated a Bill to make the rules on hours of work more flexible. It requests the Government to indicate whether the envisaged provisions also cover the system of the weekly rest period.

Observation (CEACR) - adopted 2001, published 90th ILC session (2002)

Articles 6 and 7 of the Convention. In its previous comments the Committee asked the Government to envisage amending sections 150 and 152 of the Labour Code in order to bring the national legislation into full conformity with the provisions of the Convention. It notes the Government’s response of 2 October 2001 to the comments previously made by the Confederation of Workers Rerum Novarum (CTRN). It further notes that no such amendments have been made or envisaged so far. The Committee once again asks the Government to take all necessary measures to make the respective changes in the legislation, to ensure that in the course of each period of seven days at least 24 consecutive hours of rest are granted in commercial establishments, and all persons to whom special weekly rest schemes apply are entitled, in each period of seven days, to a rest period of not less than 24 hours.

Observation (CEACR) - adopted 2000, published 89th ILC session (2001)

The Committee notes the Government’s report for the period ending June 2000. It has also noted the communication from the Rerum Novarum Confederation of Workers (CTRN), a copy of which has been sent, in September 2000, to the Government which is requested to submit any comments it wishes to make in reply.

The CTRN criticizes the application of sections 150 and 152 of the Labour Code in practice. According to section 150, paragraph (d), commercial establishments have the possibility to remain open on mornings on Sunday and national holidays. According to the CTRN, the employers concerned do not respect the obligation to close in the afternoon. Furthermore, section 152, which specifies a sanction of double remuneration for the worker forgoing weekly rest, does not appear to deter employers’ threat of reprisals that discourages workers from denouncing abuses and renders labour inspections ineffective.

The Committee wishes to recall that, under the terms of Article 7(2) of the Convention, weekly rest should be provided for each period of seven days to persons to whom special schemes for weekly rest are applied. In this regard, it points out that sections 150 and 152, which permit a general derogation from the provisions of Article 6 of the Convention, should conform to the limits imposed in Article 7(1), which prescribes the conditions under which special schemes for weekly rest can be taken.

In view of the provisions of abovementioned sections 150 and 152, the Committee requests the Government to envisage amending the national legislation to bring it into full conformity with the provisions of the Convention. The Government is asked to indicate in its next report how the national legislation will then ensure that in the course of each period of seven days at least 24 consecutive hours are strictly granted in commercial establishments as provided for in Article 6 of the Convention. The Government is also requested to indicate the way in which the national legislation gives effect to Article 7, paragraph 2, of the Convention which specifies that all persons to whom special schemes apply shall be entitled, in respect of each period of seven days, to a rest period of not less than 24 hours.

Lastly, the Government is asked to communicate in future all reports of the inspection services and any available statistics that could provide information on the manner in which the Convention is applied in practice, as requested in Part V of the report form.