Solicitud directa (CEACR) - Adopción: 2009, Publicación: 99ª reunión CIT (2010)

Convenio sobre el descanso semanal (industria), 1921 (núm. 14) - Luxemburgo (Ratificación : 1928)

The Committee notes that the Act of 31 July 2006 issuing a Labour Code consolidates a large number of laws relating to labour matters, including the Act of 1 August 1988 on the weekly rest period of salaried employees and manual workers. It notes that the Labour Code contains rules relating to the prohibition in principle of work on Sundays and the requirement to grant workers a period of weekly rest of at least 44 consecutive hours. The Committee wishes to raise the following points with regard to the application of the Convention.

Articles 1 and 4 of the Convention. Scope of application. Managerial and supervisory staff. The Committee notes that the principle of the prohibition of work on Sundays, established by section L.231-1 of the Labour Code, is not applicable to employees engaged in executive positions or to higher level managerial staff whose presence in the enterprise is indispensable for its operation and supervision. It draws the Government’s attention to the fact that, while the need for a certain flexibility in the organization of working time for higher level managerial staff can be acknowledged, the weekly rest period remains an essential element in protecting the health of all workers. Article 4 of the Convention nevertheless allows total or partial exceptions to the normal weekly rest scheme to be introduced, on condition that humanitarian and social considerations are taken into account, and not only economic considerations. The Committee considers in this respect that it would be desirable to establish a certain framework for exceptions to the normal rules relating to the weekly rest period applicable to the staff members covered by section L.231-1 of the Labour Code, instead of purely and simply excluding them from the applicable provisions in this respect. The Committee requests the Government to keep the Office informed of any decision that it may take in this respect.

Article 4. Total or partial exceptions to the rules respecting the weekly rest period. The Committee notes that, under section L.231-11 of the Labour Code, workers shall benefit from a weekly rest period of at least 44 consecutive hours, which shall in so far as possible coincide with Sunday. It observes that workers accordingly benefit in principle from a weekly rest period that is well above the minimum duration required by the Convention, namely 24 consecutive hours. The Committee also notes that, by virtue of section L.231-11(3) of the Labour Code, employed persons whose service does not allow this uninterrupted rest period of 44 hours are entitled to additional annual leave of six working days. It further notes that section 1 of the Grand Ducal Regulations of 26 July 1966, issued under the Act of 22 April 1966 adopting uniform regulations on the annual holidays with pay of employed persons in the private sector grants one additional day of annual holiday for each full period of eight weeks, whether or not they are successive, during which the uninterrupted rest period of 44 hours in the week is not granted. The Committee requests the Government to provide further information on the extent to which it is authorized to make exceptions from the normal scheme of 44 consecutive hours of weekly rest, and to indicate whether workers are in any case ensured of a minimum period of rest of 24 consecutive hours. Finally, the Committee notes that Grand Ducal Regulations are to be made to determine the conditions for the implementation of section L.231-11(3) of the Labour Code. It requests the Government to indicate whether these Grand Ducal Regulations have been issued and, if so, to provide a copy.

With regard to the prohibition of work on Sundays, the Committee notes that, under the terms of section L.231-6(1)(7) of the Labour Code, this rule does not apply to transport enterprises. It notes that section L.214-5 of the Labour Code provides that mobile workers employed in the road transport sector shall be granted a weekly rest period in accordance with the provisions of the Community Regulation on driving time and rest periods or, failing that, with the AETR Agreement. The Committee requests the Government to provide further information on the weekly rest scheme applicable to the workers covered by section L.214-5 referred to above, and the rules applicable in this respect to other categories of workers engaged in the transport of persons or goods by road, rail or internal waterways, who are included in the scope of application of the Convention under the terms of Article 1(1)(d). The Committee also notes that, by virtue of section L.231-6 (1)(9) of the Labour Code, the prohibition of Sunday work is not applicable in enterprises in which the work, by virtue of its nature, cannot be interrupted or put off. It notes that a Grand Ducal Regulation to be issued following the opinion of the Council of State is to determine the enterprises concerned and specify the nature of work that may be performed on a Sunday. The Committee requests the Government to indicate whether this Grand Ducal Regulation has been adopted and, if so, to provide a copy. Finally, the Committee notes that the last clause of section L.231-6(1) of the Labour Code provides that a Grand Ducal Regulation to be issued following the opinion of the Council of State may supplement the list of enterprises in which exemptions may be made from the weekly rest scheme. It requests the Government to indicate whether such a Grand Ducal Regulation has been adopted and, if so, to provide a copy.

Article 5. Compensatory rest. The Committee notes that, under the terms of section L.231-7 of the Labour Code, employees who, under the terms of one of the exceptions established in sections L.231-2 to L.231-6, work on Sundays are entitled to a period of compensatory rest which does not necessarily have to be granted on a Sunday, nor on the same day for all the employees in the same enterprise. It notes that this rest period consists of a full day where the work on Sunday lasted more than four hours, and at least a half day where it was less than four hours. Moreover, the workers concerned have to be paid wages that are 70 per cent higher than the normal. The Committee also notes, as indicated above, that employees whose service does not allow them to take an uninterrupted period of 44 hours of weekly rest are entitled to six working days of additional annual holidays, under section L.231-11(3) of the Labour Code, and that section 1 of the Grand Ducal Regulation of 26 July 1966, referred to above, grants one additional day of annual leave for each full period of eight weeks, whether or not they are consecutive, during which the uninterrupted period of rest of 44 hours in the week is not granted.

With regard to compensatory rest in the case of Sunday work, the Committee notes that section L.231-7 of the Labour Code does not establish the time limit within which this rest period has to be granted to the worker. Furthermore, in the case of exemptions from the minimum weekly period of rest of 44 consecutive hours, it notes that the compensation takes the form of days of annual holiday. Although the Convention does not set a precise limit within which the period of compensatory rest has to be granted, compliance with the spirit of the Convention requires this to be within a reasonably short time, otherwise the Convention might be bereft of all significance. The Committee therefore hopes that the Government will rapidly take measures to establish a reasonably short time limit for the granting of compensatory rest to workers covered by the exceptions from the normal rules respecting weekly rest and the prohibition of Sunday work. The Government is requested to provide information on any developments in this respect.

The Committee further notes that section L.211-7(1) of the Labour Code envisages the drawing up of a work organization plan containing, among other information, indications concerning the weekly rest period and, where appropriate, the compensatory rest due in cases where the weekly rest is not granted. It notes that, by virtue of section L.211-11 of the Labour Code, sections L.211-6 to L.211-10 were only valid up to 31 July 2007, and were then extended up to 1 January 2012 by an Act of 24 July 2007. It also notes that an evaluation was to be carried out of the impact of these provisions on the employment market over an observation period ending on 31 December 2006. The Committee requests the Government to provide all relevant information on the findings of the evaluation.

Part V of the report form. Application in practice. The Committee notes that the Ministry of Labour and Employment has drawn up a form for the declaration of Sunday work which is to be submitted, where applicable, to the Labour and Mines Inspectorate. It requests the Government to provide general information on the manner in which the Convention is applied in practice including, for instance, extracts from reports of the inspection services and, if such statistics are available, information on the number of workers in industry covered by the relevant legislation, and the number and nature of the contraventions reported and the measures taken as a consequence.

Finally, the Committee takes this opportunity to recall that, based on the conclusions and proposals of the Working Party on Policy regarding the Revision of Standards, the ILO Governing Body has decided that the ratification of up to date Conventions, including the Weekly Rest (Industry) Convention, 1921 (No. 14), and the Weekly Rest (Commerce and Offices) Convention, 1957 (No. 106), should be encouraged because they continue to respond to current needs (see GB.283/LILS/WP/PRS/1/2, paragraphs 17–18). The Committee accordingly invites the Government to envisage ratifying Convention No. 106 and to keep the Office informed of any decision taken or envisaged in this respect.