Weekly Rest (Industry) Convention, 1921 (No. 14) - China - Macau Special Administrative Region (Ratification: 1999)

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 Conventions on working time, the Committee considers it appropriate to examine Conventions Nos 1 (hours of work (industry)), 14 (weekly rest (industry)) and 106 (weekly rest (commerce and offices)) together.

Hours of work

Articles 2(b) and (c), 4 and 5 of Convention No.1. Variable distribution of working hours. Further to its previous comments, the Committee notes that the Government in its report refers to section 33(2) of Law No. 7/2008, which provides that the employer may, depending on the characteristics of the operation of the undertaking, agree with the worker that the daily working period exceeds the limits of 8 hours per day, provided that the worker has 10 consecutive hours of rest per day, totalling not less than 12 hours, and that the working period may not exceed 48 hours per week. The Committee also notes that under section 40(3) of the Law No. 7/2008, the organization of shift work shall be subject to the maximum limits of the normal working period and shall guarantee the worker 10 consecutive hours of rest per day, totalling not less than 12 hours, and the working hours may be fixed with continuous or interspersed working periods. In this respect, the Committee recalls that the averaging of hours of work in general is authorized in the Convention only over a reference period of one week, and provided that a daily limit of nine hours is required (Article 2(b)); in all the other cases in which the averaging of working hours is allowed over reference periods longer than a week, the circumstances are clearly specified, as follows: (i) in case of shift work, it shall be permissible to employ persons in excess of 8 hours in any 1 day and 48 hours in any 1 week, if the average number of hours over a period of three weeks or less does not exceed 8 per day and 48 per week (Article 2(c)); (ii) in those processes which are required by reason of the nature of the process to be carried on continuously by a succession of shifts, the daily and weekly limit of hours of work may be exceeded subject to the condition that the working hours shall not exceed 56 in the week on the average (Article 4); and (iii) in exceptional cases where it is recognized that the limits of 8 hours a day and 48 hours a week cannot be applied, but only in such cases, agreements between workers’ and employers’ organizations concerning the daily limit of work over a longer period of time may be given the force of regulations, provided that the average number of hours worked per week, over the number of weeks covered by such an agreement, shall not exceed 48 (Article 5). Therefore, the Committee requests the Government to take the necessary measures to bring the above provisions of the Law No. 7/2008 into conformity with the requirements of the Convention, and to provide information on any progress made in this regard.

Article 6. Temporary exceptions. Circumstances and limits. The Committee observes that section 36 of the Law No. 7/2008 providing for overtime: (i) only prescribes the circumstances under which an employer may request an employee to work overtime without the employee’s consent and remains silent on the circumstances under which resort to overtime can be made with the employee’s consent; and (ii) does not seem to fix any clear limits to additional hours. The Committee also observes that section 37(2) of the Law No. 7/2008 provides that additional hours performed at the request of the employer with the consent of the worker or at the initiative of the worker with the consent of the employer are remunerated at a rate 20 per cent higher than normal hours. The Committee recalls that: (i) temporary exceptions to normal hours of work are authorized in the Convention in very limited and well-circumscribed cases; (ii) regulations shall fix the maximum of additional hours; and (iii) the rate of pay for overtime shall not be less than one and one-quarter times the regular rate. Therefore, the Committee requests the Government to take the necessary measures, including the revision of Law No. 7/2008, to: (i) define the exceptional circumstances under which normal hours of work may be temporarily increased in industrial establishments; (ii) fix the maximum of additional hours allowed; and (iii) provide a rate of pay for overtime at least one and one-quarter times the regular rate, in accordance with this Article of the Convention.

Weekly rest

Articles 4 and 5 of Convention No. 14 and Articles 7 and 8 of Convention No. 106. Exceptions and compensatory rest. Following its previous comments on sections 42.2 (flexible weekly rest scheme) and 43.3 (work voluntarily performed by workers on their weekly rest day) of the Law No. 7/2008, the Committee notes that the Government indicates in its reports that: (i) due to the nature of the activities in industry and enterprises, and in order to promote the sustainable development of the society, a more flexible approach is adopted in the law to regulate the weekly rest days, while balancing the interests of both employers and employees; (ii) the 2020 amendment of Law No. 7/2008, adds the requirement of recording the workers’ voluntariness to perform work on weekly rest day; (iii) the provision does not provide for overtime remuneration as compensation for work performed on weekly rest day, but rather the compensatory rest should take precedence; and (iv) since the compensatory rest must be taken within 30 days of work, if the compensatory time off cannot be taken, the provision provides for overtime remuneration instead. The Committee requests the Government to take the necessary measures, including the revision of Law No. 7/2008, to ensure that in case of exceptions to the principle of weekly rest, all workers working it their weekly rest day benefit in respect of each period of seven days, to rest of a total duration at least equivalent to 24 consecutive hours, irrespective of any monetary compensation.

Direct Request (CEACR) - adopted 2014, published 104th ILC session (2015)

Articles 2, 4 and 5 of the Convention. Uniformity of weekly rest day – Total or partial exceptions. The Committee requests the Government to refer to the comments made under Articles 6, 7 and 8 of the Weekly Rest (Commerce and Offices) Convention, 1957 (No. 106).

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

Articles 2, 4 and 5 of the Convention. Uniformity of weekly rest day – Total or partial exceptions. The Committee requests the Government to refer to the comments made under Articles 6, 7 and 8 of the Weekly Rest (Commerce and Offices) Convention, 1957 (No. 106).

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

Article 2, paragraphs 2 and 3, of the Convention. Uniformity and the day on which the weekly rest is granted. The Committee notes the Government’s statement that it is impossible to prescribe a single unified rule in view of the variety of complex modes of operation of industries and enterprises. The Committee, however, considers that section 17(2) of Decree-Law No. 24/89/M, which provides that the weekly leave of every worker should be planned by the employer in advance and according to the needs of the company, does not give full effect to Article 2(2) and (3) of the Convention, under the terms of which the period of weekly rest shall, wherever possible, be granted simultaneously to the whole of the staff of each undertaking and should coincide with the days already established by the traditions or customs of the country or district. In this respect, the Committee recalls that the Convention is based on three principles: regularity (24 hours rest in every period of seven days), continuity (a period of rest comprising at least 24 consecutive hours) and uniformity (the day of rest should in principle be the same for everyone). As the Committee emphasized in paragraphs 97 and 98 of its General Survey of 1964 on weekly rest in industry, commerce and offices, “weekly rest … if taken simultaneously, enables workers to enjoy their leisure hours together … Even in the absence of express provisions, the fact that a particular day of the week is prescribed for the weekly rest is sufficient to ensure uniformity”. Furthermore, the Committee considers that the exceptions to the weekly rest period referred to by the Government presuppose the existence of a basic principle. The Committee therefore requests the Government to take the necessary measures to bring its legislation into conformity with the Convention on this point.

Article 4, paragraph 1 (read in conjunction with Article 6, paragraph 1). Total or partial exceptions. The Committee notes the Government’s indication that, although section 18 of Decree-Law No. 24/89/M, which provides that whenever it is not possible to apply the regulation on the weekly rest period of 24 hours to subsectors of activity, the employer shall give the worker a period of four consecutive days’ rest for every four weeks worked. Although the Decree Law does not enumerate the sectors, professions or enterprises concerned, this does not imply that employers are free to delay the weekly rest, as the enterprise must justify itself by presenting proof to show that the normal weekly rest scheme cannot be applied before any exception can be granted. In this respect, the Committee wishes to recall that total or partial exceptions to the weekly rest scheme have to: (i) have regard to all proper humanitarian and economic considerations; and (ii) be authorized after consultation with the representative organizations of employers and workers concerned. Furthermore, Article 6(1) of the Convention provides that each Member has to draw up a list of the exceptions made under Article 4. The Committee therefore reiterates its request and asks the Government to indicate: (i) the manner in which social considerations, and not only economic considerations, are taken into account in relation to total or partial exceptions to the weekly rest scheme; and (ii) the types of establishment currently covered by special weekly rest schemes, with an indication of the number of workers covered by these exceptions and an explanation of why the weekly rest day is postponed.

Article 7. Notices and rosters. The Committee notes the indication that there are no legislative provisions requiring employers to post notices or keep rosters of weekly rest periods. It further notes that the draft new Law on Labour Relations is currently being examined and will contain provisions on this matter. The Committee requests the Government to keep the Office informed of any developments in this field and to provide a copy of the new legislative text once it has been adopted.

Part V of the report form. Application in practice. The Committee notes the detailed information provided by the Government for the period 2003–06. It requests the Government to continue providing general information on the application of the Convention in practice, including statistics on the number of workers covered by the legislation giving effect to the Convention, extracts from the reports of the inspection services indicating the number of contraventions reported to the rules respecting weekly rest and the penalties imposed in this respect, copies of collective agreements containing clauses respecting weekly rest, etc.

Direct Request (CEACR) - adopted 2005, published 95th ILC session (2006)

The Committee notes with interest the Government’s first report on the application of the Convention and wishes to draw attention to the following points.

Article 2, paragraphs 2 and 3, of the Convention. The Committee notes that there seems to be no legislative provision dealing with the issues of simultaneous, wherever possible, weekly rest for all the persons concerned in each establishment, and the regular day of rest established by tradition or custom. It therefore requests the Government to supply additional explanations on these points.

Article 4, paragraph 1, read in conjunction with Article 6, paragraph 1. The Committee notes that under section 18 of Legislative Decree No. 24/89/M, where it is not feasible to apply the 24-hour weekly rest rule due to the nature of the sector of economic activity, workers must be given a rest of four consecutive days for each four-week work period. The Committee requests the Government to specify whether any industrial establishments are currently subject to special weekly rest schemes, the number of workers affected by such schemes and the reasons for the deferral of the rest day.

Article 7. The Committee notes the Government’s statement to the effect that no measure has as yet been taken to oblige employers to post notices at the workplace indicating the days and hours of collective rest or to draw up rosters informing workers of special rest schemes. The Government adds that the new draft labour legislation, which is currently at an advanced stage of the legislative process, is expected to remedy this situation. The Committee requests the Government to keep it informed of all future developments in this regard.

Part V of the report form. The Committee would be grateful if the Government would continue to supply general information on the application of the Convention in practice, including for instance statistics on the number of workers covered by the relevant legislation, extracts from reports of the labour inspection services showing the number of violations observed and sanctions imposed, full particulars on authorized total or partial exceptions, etc.