Demande directe (CEACR) - adoptée 2005, publiée 95ème session CIT (2006)

Convention (n° 132) sur les congés payés (révisée), 1970 - Belgique (Ratification: 2003)

The Committee notes with interest the Government’s first report and the very detailed information it contains. It wishes to receive further information on the following points.

Article 2 of the Convention. Scope of application. Private sector. The Committee notes that, according to the information communicated by the Government in its report, the main categories of workers not covered by the legislation on annual holidays in the private sector are the following: professional sportsmen and women; professional cyclists; childcarers; casual workers (under certain conditions); working students (under certain conditions); domestic staff not living in their employers’ homes (under certain conditions); and volunteer firefighters (under certain conditions). The Committee requests the Government to:

-  indicate the provisions under which these categories of workers are excluded from the system of annual holidays for private sector workers;

-  indicate to what extent the organizations of employers and workers concerned were consulted with regard to this exclusion;

-  indicate under which conditions casual workers, working students, domestic staff not living in their employers’ homes and volunteer firefighters are excluded from this system (as the Government’s report states that, for these categories of workers, the exclusion only applies "under certain conditions");

-  indicate the legislation applicable to these workers concerning annual holidays.

Public sector. The Committee notes that the Act of 14 December 2000 establishing certain aspects of working time arrangements in the public sector applies to public sector workers and their employers, with the exception, among others, of establishments carrying out industrial or commercial activities and those which provide health, disease prevention or hygiene services. It also notes that Chapter III of the above Act, which covers annual holidays, is not applicable to members of staff subject to the Act of 7 December 1998 organizing an integrated police service nor to military personnel, and that the King determines the minimum requirements relating to working time arrangements to guarantee them a level of protection equivalent to that enjoyed by other workers covered by the Act of 14 December 2000. The Committee requests the Government to:

-  indicate the legal provisions governing the annual holidays of public sector workers employed in establishments carrying out industrial or commercial activities, or providing health, disease prevention or hygiene services;

-  indicate whether a Royal Order regulates the annual holidays of personnel subject to the Act of 7 December 1998 organizing an integrated police service, and of military personnel, and, if so, to provide a copy.

Moreover, the Committee requests the Government to provide information on the application of Articles 4-11 of the Convention to public sector workers.

Article 7, paragraph 2. Time of payment of holiday pay. The Committee notes that section 23(1) of the Royal Order of 30 March 1967 determining the general measures for the application of the laws on annual holidays of employees provides that holiday pay is paid to the manual workers at the time when they take their holidays and, in the case of holidays that are divided into two or more periods, upon the occasion of their main holiday, at the earliest on 2 May of the year in which the holiday is taken. The Committee requests the Government to indicate the measures taken to ensure that manual workers who take their annual holidays before 2 May receive their holiday pay before the beginning of the holiday, as required by this Article of the Convention. Furthermore, the Committee notes that under the terms of section 23(2) of the Royal Order of 30 March 1967, in the case of manual workers employed in enterprises falling within the authority of the Joint Commission of the Diamond Industry and Trade, the holiday pay for the fourth week of holidays is paid during that fourth week. The Committee requests the Government to indicate whether this particular rule is the result of a collective agreement applicable to the diamond industry and trade.

Article 11. Termination of the employment relationship. The Committee notes that, according to the information provided by Government in its report, in the case of termination of the employment relationship, workers who have completed the minimum period of service during the period in which entitlement to holidays is accrued, benefit from the holidays during the year in which they are due once working for a new employer. The Committee requests the Government to indicate the provisions establishing this rule. The Government is also invited to specify the provisions determining the conditions for the provision of holiday pay to manual workers in the case of termination of the employment relationship.

Article 12. Cases in which the worker is unable to take holidays. The Committee notes that, in accordance with section 2(3) of the Coordinated Acts of 1971 respecting workers’ annual holidays, the right to holidays is acquired, notwithstanding any agreements to the contrary and workers may not forgo the holidays to which they are entitled. It notes, however, that under the terms of section 67 of the Royal Order of 30 March 1967, when a worker is unable to take his or her holidays, the holiday pay is paid to him or her on the normal date of the holidays set within the enterprise where he or she was last employed and at the latest by 31 December of the year which follows the year in which he or she became entitled to the holiday. The Committee requests the Government to provide more detailed information on the application of this provision in practice and on the measures taken to ensure that the worker cannot forgo his or her annual holiday in exchange for compensation (in this instance, holiday pay).

Part V of the report form. The Committee notes the detailed statistical information communicated by the Government, in particular with regard to the number of inquiries carried out, and requests it to continue to provide general indications on the manner in which the Convention is applied in practice.