Weekly Rest (Commerce and Offices) Convention, 1957 (No. 106) - Afghanistan (Ratification: 1963)

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

Articles 7 and 8 of the Convention. Permanent and temporary exemptions – Compensatory rest. The Committee recalls its previous comments in which it noted that section 44(1) of the Labour Code of 2008 allows for work to be performed during the weekly rest day under much broader conditions than those provided for in the Convention, for instance, work for the purpose of loading or unloading of consignments or performance of other urgent work. The Committee also noted that under section 45(2) of the Labour Code, when work cannot be interrupted for reasons of public need, the employer may either grant compensatory rest or pay the corresponding money wages, while section 69 of the Labour Code confirms the optional character of compensatory rest by providing that work done during public holidays is remunerated at double the wage rate, unless the worker requests to be compensated in the form of a day’s leave. The Committee wishes to recall that the Convention allows for permanent or temporary exemptions only in specifically defined cases, and requires that workers to whom such exemptions apply be granted compensatory rest of a total duration at least equivalent to the 24-hour weekly rest period. In its latest report, the Government indicates that the Labour Code of 2008 is currently under revision and that the Committee’s comments would be duly taken into account in this process. The Committee hopes that in the context of the ongoing process of revision of the Labour Code of 2008, the Government will take the necessary legislative measures to ensure that all authorized exceptions to the normal 24 hour weekly rest period remain limited to the cases enumerated in Articles 7(1) and 8(1) of the Convention, and that in all such cases provision is made for compensatory rest, as required under Articles 7(2) and 8(3) of the Convention.

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

Article 7 of the Convention. Special weekly rest schemes. The Committee notes with interest that a new Labour Code has been adopted and entered into force on 21 April 2008. It notes that articles 44(1) and 45(1) of the Labour Code establish the same special schemes of weekly rest as the draft Code submitted to the Office in April 2007. Further to its previous comment, the Committee recalls that, under the terms of Article 7 of the Convention, the application of these special schemes shall have regard to social considerations, and not exclusively economic considerations, and shall be the subject of prior consultation with the employers’ and workers’ organizations concerned. The Committee further notes that articles 44(2) and 45(2) of the Labour Code do not establish the obligation to grant workers covered by special schemes compensatory rest of a total of 24 hours for each period of seven days, as explicitly required by Article 7, paragraph 2, of the Convention. The Committee wishes to recall that compensatory rest is justified by the need to protect the health and well-being of workers. It is therefore of a compulsory nature and cannot be replaced by compensation. The Committee once again requests the Government to provide information on the manner in which the relevant social and economic considerations were taken into account in the formulation of articles 44(1) and 45(1) of the new Labour Code, and on the consultation process organized for this purpose with the social partners. Furthermore, it requests the Government to indicate the measures adopted or envisaged to bring articles 44(2) and 45(2) of the Labour Code into full conformity with Article 7, paragraph 2, of the Convention.

Article 8. Temporary exemptions. The Committee notes that article 44(1) of the Labour Code allows the same temporary exemptions from weekly rest as the draft Labour Code and that it refers, among others, to the case of the loading and unloading of merchandise. In its previous comment, the Committee recalled that, under the terms of Article 8 of the Convention, the mere loading and unloading of merchandise does not appear to be a valid reason for establishing a temporary exemption, as it cannot be qualified as “abnormal pressure of work due to special circumstances” preventing the employer from resorting to other measures. The Committee also emphasized that the introduction of these exemptions should be the subject of prior consultation with the organizations of employers and workers concerned. Furthermore, the Committee notes that, in cases where work is performed on the weekly rest day under these exemptions, article 44(2) of the Labour Code establishes the obligation to pay, in addition to the normal overtime wage, 50 per cent of the wage as an incentive, without necessarily granting compensatory rest. The Committee wishes to emphasize that, under the terms of Article 8, paragraph 3, of the Convention, the application of temporary exemptions does not deny the worker from being granted compensatory rest of a total duration of at least 24 hours. It emphasizes once again that compensatory rest is justified by the need to protect the health and well-being of workers and that consequently financial compensation may be paid in addition to, but not in place of, the required compensatory rest. The Committee requests the Government to re-examine the cases of authorized temporary exemptions so as to ensure that they do not exceed the strict conditions enumerated in Article 8, paragraph 1, of the Convention. It also requests the Government to take the necessary measures to ensure that compensatory rest is granted to workers covered by temporary exemptions, in accordance with Article 8, paragraph 3, of the Convention.

Direct Request (CEACR) - adopted 2007, published 97th ILC session (2008)

The Committee notes that the Government has transmitted to Parliament the draft new Labour Code for adoption. It also notes that the Office has already provided the Government with an informal opinion on the provisions of this draft Labour Code. It requests the Government to keep it informed of the progress made in adopting this text.

Article 7 of the Convention. Special schemes. The Committee notes that section 41 of the draft Labour Code provides that Friday is the weekly rest day. It also notes that, in accordance with section 44 of this text, weekend work may be permitted in a number of cases by agreement between the worker and the employer, but without the consent of the Council of Representatives, as required by section 58 of the 1987 Labour Code, or the agreement of the Social Union and the Ministry of Labour and Social Affairs, as provided for by the draft Labour Code of 2006, in particular for continuous work which, if delayed, could cause problems in the public service, and for the performance of work related to the public service. It also notes that, in accordance with section 45 of the draft Labour Code, workers who are obliged to work on a weekly rest day because their company is engaged in an activity which cannot be interrupted, may be granted an alternative day of rest during the week or pay in compensation. The Committee draws the Government’s attention to the fact that, although Article 7 of the Convention authorizes the introduction of special schemes where the nature of the work or the services performed by the establishments concerned is such that the general rules on weekly rest cannot be applied, such special schemes have to be introduced with due regard to all proper social and economic considerations, and have to be preceded by consultations with the representative organizations of employers and workers concerned. In addition, the workers concerned have to be granted, in respect of each period of seven days, rest of a total duration of not less than 24 hours. The Committee requests the Government to provide information on the consultations that have been held on the special schemes provided for by section 44 of the draft Labour Code and to specify the manner in which social considerations, and not only economic considerations, have been taken into account. The Committee also hopes that, in its final version, this provision will provide that workers to whom a special scheme applies shall in any case be entitled to a weekly rest period of at least 24 hours.

Article 8. Temporary exemptions. The Committee notes that, in addition to the special schemes examined above, section 44 of the draft Labour Code permits, also by agreement between the worker and the employer, the following temporary exemptions from the rules relating to the weekly rest day of Friday: work which cannot be delayed, urgent repairs, the loading and unloading of merchandise, the prevention of accidents; the elimination of the consequences of natural disasters and other exceptional cases; and the performance of other urgent work with the approval of the person in charge. The Committee recalls that Article 8 of the Convention permits the introduction of such exemptions in a limited number of cases which do not include the mere loading and unloading of merchandise, as envisaged in section 44 of the draft Labour Code. Indeed, under the terms of the Convention, exemptions may be granted in the event of abnormal pressure of work due to special circumstances, in so far as the employer cannot ordinarily be expected to resort to other measures. Moreover, the representative employers’ and workers’ organizations concerned have to be consulted before determining the circumstances in which temporary exemptions may be granted by the competent national authority, and compensatory rest of at least 24 hours has to be granted to the workers concerned. In this regard, the Committee wishes to emphasize that compensatory rest is essential for the protection of workers’ health and cannot therefore merely be replaced by compensatory pay. The Committee requests the Government to provide information on the consultations that have been held on the above exceptions. It also hopes that, in its final version, section 44 of the draft Labour Code will permit the granting of temporary exemptions only in the cases listed in Article 8 of the Convention, thereby eliminating the possibility of permitting an exemption for the mere loading and unloading of merchandise. The Committee also hopes that section 45 of this text will provide for a cash payment in addition to, and not instead of, compensatory rest.