Part II. Paid Educational Leave

Chapter II. Implementation of paid educational leave

Section 1. Conditions for the grant of paid educational leave

395. While it requires the formulation and application of a policy designed to promote the granting of paid educational leave for the purposes it prescribes, the Convention is not intended to lay down details as to the conditions for the grant. Such details would be out of place in an instrument which leaves it to appropriate national measures to determine means adapted to national conditions and practice to implement paid educational leave as defined in Article 1. Article 10 merely states that conditions of eligibility for paid educational leave may vary according to whether such leave is intended for training at any level, general, social or civic education, or trade union education. This is a useful indication: the policy should facilitate the grant of paid educational leave for a number of educational purposes; at the practical implementation stage it should not result in the application of identical conditions for the grant of leave for different types of training or education. The adoption of a single policy to encourage the grant of paid educational leave for the three purposes prescribed does not necessarily mean that the same criteria should be applied to the authorisation of leave for each purpose.

396. However, the Convention does contain one provision which applies in a mandatory fashion to the conditions for the grant of any paid educational leave, irrespective of its educational purpose: the provision on equal treatment laid down in Article 8. Under this Article, paid educational leave may not be denied to workers on the ground of race, colour, sex, religion, political opinion, national extraction or social origin.

397. Given the considerable flexibility allowed in the determination of the conditions for leave based on its educational purpose, on the one hand, and the prohibition of any discrimination running counter to equal treatment, on the other, the Recommendation provides useful guide-lines as to how to establish criteria for eligibility which are both lawful, being non-discriminatory, and relevant, in keeping with the aim of paid educational leave, which is to facilitate, as effectively as possible, workers' lifelong training and education. According to Paragraph 17(1) of the Recommendation, in determining conditions of eligibility, account should be taken of the types of education or training programmes available and the needs of workers and their organisations and of undertakings, as well as the public interest.

398. The concept of conditions to be fulfilled by workers in order to benefit from paid educational leave would seem to apply to the case where a worker's subjective right to this leave is recognised: it would therefore be appropriate to establish the conditions of entitlement. On the other hand, when paid educational leave is used by the employer to send a worker on a training course, there may appear to be no reason to fix general rules concerning the conditions governing the granting of such leave, since the recipients of the leave would be determined exclusively by the employer in his managerial capacity and in accordance with his assessment of the interests of the enterprise and its training needs. This concept must, however, be qualified since the general rules of the Convention remain applicable even if the paid educational leave is granted only for the purposes of undergoing training related to the job performed, in the interests of the enterprise and at the request of the employer. In particular, the choice of recipients must not be discriminatory. In the same way, a training programme which makes provision for the granting of paid educational leave only for workers who have already acquired higher qualifications would not be consonant with the objective of training at all levels to the benefit of all workers, irrespective of their level of initial training and responsibility.

399. There remain a number of reports which, as regards the conditions governing the grant of paid educational leave, mention only the designation or selection of workers by the management for training or further training courses, without further details concerning the selection criteria applied. In some cases, the only criteria mentioned, which appear to be left to the employer's discretion, seem to present paid educational leave as much as a form of reward or bonus as a means of continuous training: this is the case when reference is made to the merit or the outstanding quality of the recipient.

400. According to the information provided by the reports which mention regulations concerning the conditions for entitlement to paid educational leave, such conditions can be divided into three categories -- those applicable to the worker, the enterprise and the training intended. Such distinctions are made mainly for the sake of convenience: in practice, the procedure for the grant of paid educational leave takes account of a number of criteria, which may occur in very complex combinations in which each condition must be interpreted in the light of the others. Without describing each national situation, the Committee will confine itself here to outlining the most frequently mentioned conditions for granting such leave.

(a) Conditions applicable to the worker

401. Since these conditions are directly applicable to the worker, it is important to know the method for ensuring that the criteria for the grant of leave are free of all distinction, exclusion or preference (Endnote 1) contrary to equal opportunity and treatment. Under Article 8 of the Convention measures should be taken to ensure equal access to paid educational leave, in particular by prohibiting the application of discriminatory conditions to workers.

402. In some countries, the texts concerning paid educational leave contain a provision which, although it is not discriminatory within the meaning of Article 8, reserves entitlement to leave to nationals (Endnote 2) or citizens. (Endnote 3) On the other hand, they usually contain no provision comparable in scope to Article 8.

403. The lack of special provisions in legislation or collective agreements to guarantee that workers enjoy equal access to this leave irrespective of their race, colour, sex, religion, political opinion, national extraction or social origin is explained in most cases by the existence of texts of a more general scope allowing the conditions for the granting of paid educational leave to be made subject to the principle of non-discrimination. According to the government reports, this is the case when the prohibition of any discrimination and the principle of equal treatment are included in the Constitution, (Endnote 4) the Labour Code (Endnote 5) or a generally applicable act respecting conditions of employment. (Endnote 6) One government points out that since the prohibition of acts of discrimination is a matter of criminal law, refusal to grant educational leave on discriminatory grounds would be a criminal offence subject to penal sanctions. (Endnote 7)

404. Not only do these national provisions not always cover all the criteria of discrimination laid down by the Convention, they are moreover sometimes likely to be less decisive in practice than the lower-ranking rules which directly govern the procedures for the grant of paid educational leave. Thus, in one country whose Constitution prohibits any discrimination on the grounds of political affiliation, the text which regulates the admission of certain categories of workers to higher education mentions the recommendation of the Party amongst the conditions required. (Endnote 8) In another country, workers entitled to special study facilities are selected account being taken of their revolutionary integration and other factors of a social and political-moral kind although both the Constitution and the Labour Code guarantee equality of treatment. (Endnote 9) The Committee would emphasise, as it has on several occasions including in its general surveys on discrimination, the need to ensure by means of complementary measures that constitutional or legislative provisions on equality in employment and occupation, in particular as regards access to training, are applied in practice.

405. In a small number of countries, entitlement to paid educational leave is reserved for young workers up to a maximum age, usually fixed at 25 (Endnote 10) or 30 (Endnote 11) years. In this case paid educational leave is intended to facilitate the continuation of studies or serve as a supplementary form of training after initial training (Endnote 12) but not to provide lifelong education and training. General conditions establishing an upper age limit are relatively rare and are being progressively abolished. (Endnote 13)

406. Much more widespread are requirements as to the length of service of a worker in the enterprise or occupation. Such conditions suggest an analogy with annual paid leave, which results from a right accumulated over a certain period of work. They may also provide the employer with an important means of guaranteeing that the worker's recruitment will not result immediately in his leaving for a training course -- especially since many training courses cannot be usefully followed without sufficient prior experience in the occupation.

407. These factors can be observed in different degrees in different countries. In Hungary, entitlement to educational leave does not depend on the length of the employment relationship; but a worker who has been employed for a period of less than one year cannot be granted leave which exceeds the number of days spent in the service of the enterprise. (Endnote 14) In Poland, the condition respecting length of service depends on the level of training intended: none is required when the purpose of the leave is to complete education at the compulsory primary-school level; (Endnote 15) one year's service is necessary for entitlement to leave to attend secondary school, and two years' if the worker wishes to begin higher education. (Endnote 16) According to the information received, the length of service required may vary between six months (Endnote 17) and five years (Endnote 18) according to the country. It is generally taken to mean a continuous employment relationship with the same employer. However, in Sweden, intermittent employment of a total duration of 12 months over the last two years with the same employer entitles a worker to educational leave as does continuous employment over the previous six months with the same employer. (Endnote 19) In France, a worker must be able to give proof of a cumulative total length of service of six months in the enterprise and 24 months, which may be consecutive or not, in the occupational branch. (Endnote 20) In Finland, a worker must have had an employment relationship with the same employer for at least one year before entitlement is granted to leave, (Endnote 21) and must have worked full time in any occupation for at least five years to qualify for an adult study grant -- although this condition may be waived for persons without any basic training.

408. An employer wishing to reserve the granting of paid educational leave to workers with some length of service in the enterprise may also endeavour to obtain guarantees that the employment relationship will continue beyond the period of paid educational leave. This is the case, in particular, when training is related to employment and financed by the employer, who then has a legitimate interest in seeing the worker return to the enterprise at the end of the training period. Thus the employer sometimes has the right to require the worker to remain in the service of the enterprise for a specified period after the end of the education or training for which leave is granted. In such cases the grant of paid educational leave is subject to the worker signing a commitment to return to work in the enterprise for a certain period. Although such commitment may extend over only a reasonable period if it is to remain compatible with the freedom of the worker and not excessively impair his occupational mobility, it should be noted that it is in the nature of paid educational leave, as well as of any leave for that matter, that the worker should afterwards return to the enterprise.

409. Such a service obligation is included in many provisions respecting the organisation of paid educational leave for officials or workers in the public sector. It generally covers a period proportional to the period of leave. In Canada, public sector employees may be required, before the beginning of the leave, to sign a commitment to return to the service of the employer for a period at least equal to that of the leave granted. (Endnote 22) In Bolivia, the commitment to remain in service must cover a period which is twice that of the training followed. (Endnote 23) In the United States, federal government employees are required to sign a written agreement to the effect that they will remain in the service of the government agency which employs them after the end of the training period for a period which is at least three times that of the training. (Endnote 24) In some countries, this obligation is laid down in the Labour Code and is applicable to all workers: in Guinea, employees undergoing training are required to remain in the service of their employers for a period which is at least equivalent to that of the training period. (Endnote 25) In Mexico, the recipients of study grants must remain in the service of their employer for at least one year after completing their studies. (Endnote 26)

410. Failure to respect such commitment may be sanctioned by reimbursement of the employer's expenses on the training (Endnote 27) or the allowance paid during the training period. (Endnote 28) In a few cases, the employer may require additional guarantees in the form of the payment of a deposit by the worker (Endnote 29) or the provision of a guarantor. (Endnote 30)

411. In cases where paid educational leave is an individual right of the worker, it is not, however, unlimited and in most cases an upper limit is placed on the leave, with reference to a given period. In this case the conditions for the grant of paid educational leave are not unlike those respecting annual paid leave: in both cases the leave results from rights accumulated during the period of service, which are exercised when leave is taken. As in the case of annual paid leave, it will be necessary to ascertain before granting the leave whether the worker has already exhausted his leave entitlement, and whether he has accumulated sufficient entitlement to allow him to take leave for the period intended.

412. The maximum leave allowed varies considerably from country to country, as do the methods of calculation. In Argentina, the right to leave to sit examinations is granted for a total of ten days per calendar year, which may be taken in periods of up to two consecutive days. (Endnote 31) In Belgium, the annual ceiling is fixed at 160 or 240 hours a year, according to the type of training. (Endnote 32) In Finland, workers are entitled to educational leave for a total of up to two years during any five. (Endnote 33) In Luxembourg, the duration of total educational leave may not exceed 60 days and no one may be granted leave of more than 20 days in a period of two years. (Endnote 34) In Germany, a distinction should be made between the statutory scheme, which limits paid educational leave to four or five days a year, (Endnote 35) and the scheme established by collective agreements which may entitle workers to two or three weeks a year. In France, where leave is granted for the duration of the training, (Endnote 36) the necessary limitation on the workers' right to paid educational leave is provided by the requirement of a fixed interval between two individual training leaves: such interval varies with the length of previous training leave between a minimum of six months and a maximum of eight years. (Endnote 37)

(b) Conditions applicable to the enterprise

413. Among the points to be taken into consideration in determining the conditions to be fulfilled by workers in order to benefit from paid educational leave, the Recommendation includes the needs of the enterprise. It is significant that the concept of the needs of the enterprise was preferred, during the preparatory work, to that of the requirements of employer establishments (Endnote 38) or production requirements; (Endnote 39) and it was specified that it should be interpreted as referring to the specific training needs felt by the workers regarding the tasks which they carry out in the undertaking. (Endnote 40) Furthermore, the Recommendation points out in Paragraph 17(3) that the manner in which workers who satisfy the conditions of eligibility are granted paid educational leave should be agreed between undertakings or the employers' organisations concerned and the workers' organisations concerned so as to ensure the efficient continuing operation of the undertakings in question.

414. This concern to ensure the efficient continuing operation of the enterprise should not be seen as a response to the concerns of employers alone: it is just as much in the workers' interest that the grant of paid educational leave should not disrupt the work pace of the undertaking, imposing an extra work burden on other workers or requiring the recipients of leave to perform the same work in a shorter time. Workers and their representatives should therefore be associated in the procedure for the grant of paid educational leave as well as in the scheduling of such leave and the reorganisation of work which may be entailed.

415. According to the information available, the efficient continuing operation of the enterprise can be ensured both by a provision regulating the grant of leave by limiting the number of simultaneous absences due to workers going on educational leave and by giving the employer the right to refuse a worker permission to take educational leave which he considers to be contrary to the interests of the enterprise. Furthermore, provisions have been laid down in several countries which associate workers and their representatives in the procedure for granting such leave and which provide for appeals in the event of disputes.

416. In Belgium, employers may refuse to approve the simultaneous absence on educational leave of more than 10 per cent of the total number of workers if the enterprise has less than 20 workers, or more than 10 per cent of the workers performing the same functions if the enterprise has more than 20 workers. However, at least one worker or one worker in each function should be authorised to take paid educational leave. (Endnote 41) In France, the employer may postpone the grant of a request for training leave if a certain percentage of workers are on training leave at the same time: 2 per cent of workers in an enterprise employing more than 200 workers, 2 per cent of the total hours of work in an enterprise employing more than 200 workers, or two absences on account of individual training leave for enterprises with fewer than ten employees. (Endnote 42) In Jamaica, the provisions respecting the study leave of teaching staff state that it cannot be granted when the number of persons simultaneously absent reaches 10 per cent of the academic staff -- the number of staff in this case comprising both teachers on study leave and those on annual paid leave. (Endnote 43)

417. Provisions to protect the interests of the enterprise have also been established which give the employer a certain degree of leeway. In Germany, collective agreements generally include a clause whereby in the procedure for granting leave the interests of the enterprise must be respected, in particular as regards the choice of time at which the worker is permitted to exercise the right to paid educational leave. The legislation of the Länder provides that educational leave may be refused if it could jeopardise the essential interests of the enterprise. (Endnote 44) In Belgium, in the event of unforeseeable or difficult circumstances, the plans established regarding the grant of paid educational leave may be amended at the request of the employer, who must provide reasons. (Endnote 45) In Finland, if the grant of paid educational leave during the period indicated in the request made would involve manifest inconvenience for the activity of the employer, it may be postponed for up to a maximum of six months; use may not be made of this option more than twice consecutively. (Endnote 46) In France, an employer who believes that the departure of a worker on educational leave could have consequences which are detrimental to production and the proper conduct of the undertaking may delay the commencement by up to nine months. (Endnote 47)

418. In some countries, an employer who intends to postpone approval of a request for educational leave is required to consult workers' representatives. In Sweden, the employer may postpone the grant of time off for training provided that reasons for the postponement are given and that the workers' organisation concerned is notified; approval by the workers' organisation is necessary when the postponement is for more than six months. (Endnote 48) In France, an employer may postpone the grant of a request for training leave for service reasons only after consultation of the works committee or, if there is no such committee, the staff delegates. (Endnote 49)

419. A balance can be achieved between the interests of the enterprise and the workers' right to educational leave by the constant association of workers' representatives in the procedure for granting leave. In Germany, under their general powers respecting leave works councils may express their views on measures taken to implement the right to educational leave. In Belgium, paid educational leave must by law be planned by the works council or by agreement between the employer and the trade union delegation in the enterprise. (Endnote 50)

420. Appeals procedures are often available in the event of a dispute between the employer and workers concerning the granting of leave. In Germany, works councils may mediate disputes. In Belgium, any persistent disagreement must be submitted to the labour inspection authorities; (Endnote 51) whilst in France any of the parties in a dispute may place the case before the labour inspector for arbitration. (Endnote 52) In Sweden, refusal to grant leave may be appealed by the worker in the courts. (Endnote 53)

(c) Conditions applicable to training

421. Conditions of grant based on the nature of the intended education or training vary according as the legislation or collective agreement makes provision for the grant of paid educational leave solely for the purpose of training related to employment or includes more general purposes chosen by the worker. The conditions respecting the grant of paid educational leave for the purpose of trade union education are a different matter, as emphasised by the Recommendation, which deals with them separately.

422. In the many countries in which the grant of paid educational leave is provided for only for the purposes of vocational training, assessment of the extent to which the intended training meets the needs of the enterprise -- that is to say the training needs felt by the workers in carrying out the tasks assigned to them in the enterprise -- very often seems to be left to the discretion of the employer. Some reports provide information on the methods of evaluating the relevance of the training to the job in question within the context of the public service. In Guatemala, an Act makes provision for the right of public servants to paid leave for study purposes when such study relates to a specific programme of the service or, in the view of the appointing authorities, to the duties inherent in the post held by the person concerned, by their nature resulting in an improvement of the services provided. (Endnote 54) In Canada, the Master Agreement for the public service stipulates that employees on study leave may receive an allowance in lieu of salary of up to 100 per cent of the rate of remuneration, depending on the degree to which, in the view of the employer, the study leave is related to the service needs: (Endnote 55) in the Province of Alberta, the amount of this allowance is fixed by means of a scale which provides an exact assessment of the degree to which the training meets the needs of the department.

423. In countries which have established the grant of paid educational leave for educational purposes other than vocational training alone, the principal condition is that the education or training for which leave is requested should be of the kind provided for. In some cases, the worker has a right to educational leave as against the employer if the leave is required for training as provided by legislation or collective agreement: entitlement to leave will be subject only to the production of proof by the worker that he is in fact engaged in the studies concerned, for example a certificate of enrolment in an establishment or a notification to attend an examination. This is the case in Argentina, where any worker has the right to leave to sit an examination, provided that the examination pertains to an official teaching programme or one authorised by the competent authorities. (Endnote 56) In the USSR (RSFSR), workers who undertake studies are granted paid leave and daily or weekly reductions in their working time: the form and extent of these facilities vary according as the studies carried out pertain to general, vocational and technical training or specialised, higher and secondary education. (Endnote 57) In Poland, the level of education determines the duration of the leave granted, from 14 days a year to complete primary education to 70 days a year to follow studies at the postgraduate level: if studies are in the form of evening courses, leave may be combined with a weekly reduction in hours of work. (Endnote 58)

424. However, it is not always sufficient that the educational purpose of the leave falls within such a widely defined type of education or training: very often there is a condition that the specific programme which the worker intends to follow must be approved. Thus there may be a requirement that the programme be approved by the public authorities. In Germany, the leave provided for by law may be granted only for participation in educational training programmes recognised by the Government. (Endnote 59) In Luxembourg, the programmes of study courses or sessions for which paid educational leave may be granted must be approved by the minister for youth. (Endnote 60) The law may also, as in Belgium, create a special commission, in which workers' and employers' organisations are represented, to approve training programmes. (Endnote 61)

425. In other countries, a distinction is made between conditions concerning training which are applicable to the grant of the leave and those which are applicable to financial entitlements: the allocation of financial resources appears to be a powerful means for channelling paid educational leave to the objectives considered to be most useful. In Sweden, legislation in no way limits the choice of training for which time off may be granted; but the least educated workers are given preference by the adult education commissions in the granting of training allowances, thus encouraging general basic education. In France, the right to educational leave, irrespective of the training chosen, does not entail the right to remuneration: the leave is paid only if the worker chooses a training programme which has been approved for this purpose by the joint bodies responsible for administering individual training leave; these bodies, which are set up at the branch or inter-occupational regional level, are allowed to give priority to certain training objectives, usually concerning skill acquisition or retraining. (Endnote 62)

426. Account may also be taken of the intended training when, at the enterprise level, it is impossible to grant leave to all applicants simultaneously. In such cases, priority is given in Finland to workers who request vocational training or wish to complete their primary schooling, (Endnote 63) whilst in Sweden priority is given to requests from workers who wish to undergo trade union education, followed by applications from workers who have not received education corresponding to the nine years of primary education. (Endnote 64)

427. Paragraph 17(2) of the Recommendation states that, as regards paid educational leave for trade union education, the workers' organisations concerned should have responsibility for selection of candidates. This specific provision respecting the conditions for the grant of leave should be read in conjunction with Paragraph 18 concerning the responsibility of trade union organisations in the planning, approval and implementation of trade union education programmes. Thus, in the Netherlands, some collective agreements thus state that the requests for educational leave for participation in a trade union education programme provided by a workers' organisation should be presented by the trade union rather than directly by the worker.

Section 2. Rights of workers on paid educational leave

(a) Maintenance of the employment contract and its scope

428. The advantage of paid educational leave is that it enables the completion of training and education whilst in employment. Like other kinds of leave, paid educational leave does not end the employment relationship and the employment contract: at the end of the paid educational leave, the worker's job must be waiting for him as it is after sick leave or annual paid leave. However, unlike annual paid leave, which the worker uses as he sees fit, paid educational leave is intended for a specific purpose which the worker is required to respect. While the employer has no right to examine the way in which the worker makes use of his free time, he is entitled to verify that paid educational leave is properly spent by the worker on the training and educational activities for which such leave has been granted. The legal situation of workers on paid educational leave is thus characterised by the suspension of certain obligations resulting from the employment contract, (Endnote 65) and their replacement by others: the worker is relieved of the work normally carried out under the employment contract and placed under the obligation to attend the education or training courses for which the leave is granted. In order to verify the worker's compliance with this obligation, the employer retains a certain disciplinary authority over him during the paid educational leave.

429. In most countries, provisions have been established to regulate the employer's control of the use made of paid educational leave. In Belgium, the relevant Act requires the heads of establishments and persons responsible for training to provide workers with certificates of attendance. (Endnote 66) In the same way, in Finland, the authority responsible for organising study or training courses is required to provide a certificate confirming that the educational leave is used in the approved manner so that the worker may present this certificate at the employer's request. (Endnote 67) In France, at the end of each month and on returning to work the recipient of educational leave must provide the enterprise with a certificate evidencing actual attendance at the training course: a worker who, without a valid reason, ceases to attend the training course for which the leave has been granted loses the leave entitlement. (Endnote 68) In Trinidad and Tobago officials who abandon their studies or change courses without permission run the risk of having their study award cancelled and being required to reimburse immediately allowances already received. (Endnote 69)

430. The disciplinary authority retained by the employer may be exercised over and above this formal and, as it were, outside control of the worker's mere attendance at courses. In particular, if the paid educational leave has been granted for the worker to undergo, at the employer's initiative, training which is indispensable to the work performed by the worker, the employer may also monitor the acquisition of knowledge and skills. The worker may then be required not only to provide a certificate of actual attendance but also proof of some degree of success. A good example of this is the regulation applicable to state employees in the United States (Tennessee), which contains a regulation stipulating that the training assignment comprises the same obligations in terms of attendance and results as any other work assignment. (Endnote 70) The Committee believes, however, that, in so far as error appears to be an inherent component of any learning process, workers should be granted a wider margin of error within the context of training than in the performance of their work.

431. In several countries workers on paid educational leave are legally protected against dismissal. Such provisions do not absolutely prohibit the dismissal of workers on paid educational leave but are intended to make unlawful any dismissal on the ground of the worker's taking paid educational leave. Thus, in Belgium, an employer cannot dismiss a worker at any time from when he requests paid educational leave until the end of the training, except for reasons unrelated to the request. (Endnote 71) In Finland, no employment contract may be terminated, with or without notice, on the ground that the worker has requested or taken educational leave. (Endnote 72) In Sweden, when a worker receives notice of dismissal or is dismissed simply because he wishes to use the right to time off for training, the dismissal will be cancelled at the worker's request. (Endnote 73)

432. Although the worker knows that his job will be waiting for him at the end of his educational leave, there is no guarantee that his new skills will be taken into consideration, because such an obligation is rarely placed on the employer. However, in Bulgaria, the Labour Code places enterprises under an obligation to provide workers who have successfully completed a further training course with conditions enabling them to apply the knowledge and skills acquired and, in the case of advanced further training, to provide a new job if a vacancy occurs; the code further entitles workers, in the event of failure by an enterprise to discharge this obligation, to apply to the committee on labour disputes for transfer to a job suited to their new skills when a vacancy arises. (Endnote 74) It would be unrealistic to envisage the immediate and automatic promotion of workers who have followed educational or training courses; but account should be taken of the acquisition of new skills at the time of promotion.

(b) The right to adequate financial entitlements

433. For a worker on paid educational leave, the maintenance of a certain level of earnings is the most important immediate indication of the continuity of employment. The adequate financial entitlements which, under the provisions of the Convention, must be paid to workers during the paid educational leave are the subject of more detailed provisions in Paragraph 20 of the Recommendation, both as regards their objective, which should be to maintain the level of earnings with account being taken of any major additional cost resulting from the educational training, and their form, which may be that of continued payment of wages and other benefits or provision of adequate compensation.

434. When an employer decides to send a worker on a training programme, the full maintenance of remuneration would seem to be natural. Thus, in Guinea, a worker selected by the management of an enterprise to follow a training or further training course continues throughout the period of training to receive the wage which he would have normally received if he had worked. (Endnote 75) Such rules respecting the full maintenance of remuneration may, however, be accompanied by restrictions which exclude payment of certain supplementary or accessory financial benefits during the training period. In Tunisia, public officials on training leave receive remuneration corresponding to their respective grade, family benefits and productivity bonuses; all other allowances are excluded. (Endnote 76) In Côte d'Ivoire, workers receive their full salary and related allowances except those pertaining specifically to the work performance. (Endnote 77) The maintenance of remuneration may also be limited to normal hours of work. Thus, in Chile, workers who benefits from vocational training measures retain their full wage for the normal hours of work irrespective of any changes in daily hours of work: extra hours required for training does not entitle the worker to remuneration. (Endnote 78) In the United States, federal government employees are entitled to the payment of all or part of their wage, with the exception of overtime and bonuses for night work. (Endnote 79) In the case of a long period of educational leave, the payment of the full wage may be guaranteed only during part of the leave: in Lesotho, officials are entitled to their full wage during the first six months and only half the wage after that. (Endnote 80)

435. If paid educational leave is taken at the worker's initiative, it is generally accepted that the employer no longer has the same obligation to maintain payment of the full wage during the period of leave. The maintenance of the previous remuneration may be guaranteed only up to a certain ceiling to workers with the lowest income. In Belgium, a worker on paid educational leave is entitled to the maintenance of normal remuneration paid at the usual time for a number of hours corresponding to the hours of the courses followed: (Endnote 81) this remuneration is calculated in accordance with the legislation respecting paid public holidays, although an order places an upper limit on it. (Endnote 82) In Poland, all workers granted educational leave receive their normal wage provided that the income per family member is below a certain ceiling. (Endnote 83) In France a worker on individual training leave receives the full amount of his previous wage only if the wage is less than twice the statutory minimum wage or if the leave has been granted to follow training which is considered of a priority nature by the body administering leave; in other cases, the remuneration may be maintained only up to 80 per cent of the wage. In the United States, some states limit the financial benefits which their employees on paid educational leave may receive to a maximum of 75 per cent of the respective wage. (Endnote 84) In the USSR (RSFSR), the guaranteed wage is 50 per cent of the average but cannot fall below the minimum wage. (Endnote 85)

436. In several countries financial benefits are paid during the educational leave in the form of compensation fixed by reference to the compensation paid for other forms of leave or an average wage. In Yugoslavia, compensation for individual income is by law payable to workers in respect of vocational training and further training leave; this compensation is on the same level as that paid for public holidays not worked, annual leave or sick leave. (Endnote 86) In Luxembourg, the recipients of educational leave receive, for each day of leave, compensation equal to the average daily wage as defined by the legislation in force governing annual paid leave of workers employed in the private sector. (Endnote 87) In Czechoslovakia, during educational leave, the employer provides workers with an allowance in lieu of remuneration up to the amount of the average earnings. (Endnote 88)

437. In Sweden, compensation takes the form of the payment of a study award. In Finland, the study award is equal to 25 per cent of the previous income, but cannot fall below a certain amount or exceed a certain ceiling.

438. In some countries, workers have only unpaid educational leave and financial benefits take the form of a loan. In the view of the Committee, the payment of financial benefits only in the form of loans is not compatible with the notion of paid leave, and it would be illogical to seek to achieve the objective of maintaining workers' income during educational leave by measures which merely lead them into debt. This said, it would seem from the information received that the loan formula is generally used only to provide a guarantee to the employer that the leave will be used in the approved manner and that the worker will fulfil his obligations in this respect. Non-reimbursement is thus the general rule and reimbursement the exception -- a penalty applied if the worker fails to comply with his obligations. Thus the loan contract attached by the Government of Jamaica to its report makes provision for reimbursement only in the event that the borrower fails to attend the training course regularly or to discharge his obligation to remain in the education service or the civil service for the period established by the law. In Trinidad and Tobago, regulations provide that, although all payments take the form of loans, the obligation to reimburse such payments is lifted once the worker has resumed his employment in the government service for the stipulated period. (Endnote 89) In Cuba, reimbursement is required in the event of failure in examinations, and this is a major financial risk for the worker: workers studying in higher education are entitled to a fixed number of days' leave and to the amount of wages corresponding to these days in the form of a loan; they are required to reimburse half of the amount of the loan if they pass the examinations and the full amount if they fail. (Endnote 90)

439. In addition to the objective of maintaining the level of income, the financial benefits paid to workers during paid educational leave should, in accordance with the provisions of the Recommendation, take account of any major additional costs of education or training. In the case of training related to employment, training costs seem generally to be borne by the employer. In the United States, federal government employees are entitled to the payment or reimbursement of all or part of the training expenses: travel, daily allowance, tuition fees, purchase of books. (Endnote 91) Where the education or training can be provided only outside the country, the expenses to be covered may be quite considerable. In the United Republic of Tanzania (Tanganyika), the payment of the expenses of workers in the private and semi-public sectors include in particular the cost of travel and transportation of baggage of the recipient and family, tuition fees and various allowances. (Endnote 92) Provision may also be made for compensation in specific circumstances. (Endnote 93)

440. In the case of training undertaken at the worker's initiative, the payment of training expenses is less widespread. Often, the additional costs resulting from participation in general education courses which are provided free of charge, or whose tuition fees to be paid by the worker are very low, are not high enough to justify the payment of specific financial compensation. However, in Hungary, workers are entitled to reimbursement of travel expenses and may be paid a study allowance by the enterprise in addition to the payment of the average wage. (Endnote 94) In France, it is the bodies responsible for administering individual training leave which decide the extent to which training-related costs are to be reimbursed.

(c) The right to social benefits and other rights

441. Paid educational leave must not simply provide entitlement to financial benefits. It must also, in accordance with Article 11 of the Convention, be assimilated to a period of effective service for the purpose of establishing claims to social benefits and other rights deriving from the employment relation. This requirement means that during leave the worker must be provided with social protection as if he had actually been working; and the determination of rights in proportion to length of service should take account of the period of leave.

442. The assimilation to a period of effective service for the purpose of establishing claims to social benefits is fairly general, irrespective of the financial benefits otherwise guaranteed to workers on educational leave. In Belgium, a very wide provision ensures that the hours during which a worker is absent under the provisions respecting the grant of paid educational leave are assimilated to hours of actual work for the purpose of applying social legislation. (Endnote 95) In France, a worker remains affiliated to the insurance scheme to which he belongs at the time of commencement of training leave. In Guinea, workers continue to receive social benefits during the training period, which is assimilated to a period of work and taken into account in the calculation of length of service and the right to paid leave. (Endnote 96) In Yugoslavia, the Act respecting fundamental rights in pension and invalidity insurance stipulates that any period which an insured person has spent in a further training or specialisation course during the employment relation must be taken into account as a period of insurance. (Endnote 97)

443. The right to annual paid leave during the paid educational leave period is treated differently from country to country. In the United States, educational leave does not generally entitle workers to annual paid leave, (Endnote 98) but workers may be granted vacations scheduled by the training establishments which they are attending. (Endnote 99) Similarly, in Tunisia, during their training period officials are entitled to the school holidays established by the internal regulations of the training establishment concerned but may not at the same time be granted annual paid leave. In France, workers on training leave are entitled to the leave and absences as established by the education or training body and the law guarantees that the training period must be assimilated to a period of work for purposes of the determination of rights to annual paid leave and as regards rights resulting from seniority in the undertaking. (Endnote 100)

Section 3. Financing of paid educational leave

444. In order for paid educational leave to gain currency as an appropriate means for providing continuous education and training to workers, stable and permanent mechanisms must be established which guarantee both the payment of financial and social benefits to workers on educational leave and the financing of the education and training provided during such leave. Article 7 of the Convention lays down the essential principle that the financing of arrangements for paid educational leave must be on a regular and adequate basis and in accordance with national practice. However, the Convention merely states the principle: it does not include any provisions specifying how the expenses relating to paid educational leave are to be shared among the parties involved in its implementation. Throughout the preparatory work, the general recognition of the need for regular and adequate financing was in fact accompanied by a special insistence on the wide diversity of national conditions and practice which could be taken into account only by leaving it up to the States to choose the most appropriate methods to ensure such financing and the distribution of the costs among the parties concerned. (Endnote 101)

445. Paragraph 12 of the Recommendation adds that it should be recognised that employers, collectively or individually, public authorities and educational or training institutions or bodies, and employers' and workers' organisations, may be expected to contribute to the financing of arrangements for paid educational leave according to their responsibilities. It is important to emphasise that it did not appear appropriate to the Conference to distinguish between the cost of financing the maintenance of remuneration and the costs of training, or to assign in any rigid manner to each of the parties a specific responsibility for financing according to the kind of education or training provided. The individual worker is not included among the persons or bodies which may be responsible for financing arrangements for paid educational leave: a contribution from the worker to the financing of such leave would in fact be contrary to the object of paid educational leave, which is to ensure that the efforts made by the worker to acquire continuous education and training are not hampered by his having to make a financial sacrifice.

(a) Cost-sharing

446. To meet the requirements of regular and adequate financing, each country has to fix the respective obligations of employers, the public authorities and employers' and workers' organisations. The information received shows the extent to which this cost-sharing can vary according to national practice. In many countries the employer's contribution takes the form of the continued payment of a wage and social benefits to workers on educational leave, although reimbursement of remuneration and social contributions paid by employers from public funds or funds set up for this purpose by groups of employers is spreading. The public authorities may also replace the employer by paying compensation directly to the worker. The costs of education or training followed by the worker are covered by the employers or the public authorities, depending on the responsibility assigned to them by national practice with regard to the different types of education and training.

447. It is not unusual for the employer, directly and on an individual basis, to finance all the costs resulting from the maintenance of remuneration and the training expenses, particularly when the training is employment-related. This seems to be the general rule when the government grants paid educational leave to public employees.

448. In several countries, the development of national vocational training systems, usually financed by a levy on enterprises which is related to the wage bill, provides a collective financing of training, with only the payment of the wage of the worker on leave remaining the responsibility of each employer. In Nicaragua, the National Vocational Training System (SINAFORP), which is financed by an obligatory contribution by employers, provides training courses free of charge to workers on educational leave. In Guinea, any employer employing more than 25 workers must contribute to the development of continuous vocational training by participating each year in the financing of training and further training courses by means of a contribution equal to 0.5 per cent of the wage bill, which is paid to the National Vocational Training and Further Training Office (ONFPP). (Endnote 102) In Venezuela, the training courses provided by the National Institute of Educational Co-operation (INCE) are financed by an employer's contribution equal to 1 per cent of the wage bill, a 0.5 per cent deduction from wages and a supplementary contribution by the State of 20 per cent. (Endnote 103)

449. The State may also cover the cost of training while employers cover the cost of wages. This is the case, in particular, in countries which make provision for the grant of leave to workers attending courses in public establishments; (Endnote 104) but also in Germany, where the employer's contribution takes the form of the maintenance of the worker's wage, whereas training is financed by the Government, directly or through subsidies granted to training or educational establishments.

450. In other countries, provisions have been established to reduce or eliminate the burden placed on the employer by providing for the partial or total reimbursement by the State of financial and social benefits which are granted to workers on educational leave. In Luxembourg, the allowance paid by the employer is reimbursed by the State, as well as the employer's contributions to social security. (Endnote 105) In Belgium, cost-sharing varies according to the type of training: employers may obtain from the Ministry of Employment and Labour the reimbursement of half the amount of wages and social contributions relating to paid educational leave, in the case of vocational training and the full amount of wages and social contributions, in the case of general training. (Endnote 106) Thus, it is considered that part of the costs of vocational and further vocational training may be borne by the employer, although the State remains the sole body responsible for the financing of general education.

451. Compensation paid directly to the worker may replace the payment of the wage and relieve the employer of any payment. In Sweden, benefits paid by the State to adult students are financed by a special contribution from employers while training for employment and related awards are financed by a combination of contributions from employers and from taxation. In Finland, a distinction is made between study awards for adults granted by the Government to workers studying full time in secondary, occupational and university education establishments on the one hand, and vocational training grants financed by a body set up by employers and paid to workers undergoing vocational training whose wage is not maintained by the employer, on the other. (Endnote 107)

452. In Kenya, a training fund financed by a levy paid by employers is used to reimburse wages paid to workers on educational leave. In France, employers must contribute a minimum of 1.2 per cent of the amount of wages paid during the current year to the financing of training measures and, as part of this obligation, make a payment equal to at least 0.15 per cent of wages of the reference year to a joint body approved by the State for individual training leave; (Endnote 108) the management of the funds by joint bodies is based on the principle of mutual benefit, which ensures equal rights of workers to benefit from the financing of their training leave, irrespective of the contributory capacity of the enterprise in which they are employed.

(b) Special financing

453. In order to guarantee effective equality of workers in access to paid educational leave, Article 9 of the Convention provides that, as necessary, special provisions concerning paid educational leave should be established where particular categories of workers find it difficult to fit into general arrangements or where particular categories of undertakings find it difficult to do so. (Endnote 109) Although few countries, according to the information available, make use of such schemes, some governments have referred to special provisions concerning the financing of paid educational leave of certain categories of workers.

454. In France, there are special provisions for financing training leave of workers employed in small enterprises. Although employers with fewer than ten workers are not required to contribute to the financing of continuous training, the law enables their workers to enjoy equal access to training leave by providing that they can apply for financing to joint bodies administering training. (Endnote 110) The State encourages these bodies to treat such applications favourably by relating financial assistance to the resources they allocate to such requests. (Endnote 111)

455. In Luxembourg, special arrangements have been established to enable the self-employed to benefit from educational leave facilities which are comparable to those granted to employees. During their educational leave they are entitled to receive from the Government a lump-sum payment, known as a cultural grant, the amount of which is fixed by reference to the compensation paid to beneficiaries in the private sector. (Endnote 112)

456. In France, the social partners and Parliament have taken care not to exclude workers who hold precarious contracts of employment from entitlement to training leave. A specific scheme for the grant of training leave to workers who have held fixed-term contracts has been established by legislation and is financed by requiring the enterprise to pay to the joint body administering training a sum equal to 1 per cent of the wages paid to workers under fixed-term contracts for the duration of their contracts. (Endnote 113)

(c) Financing of trade union educational leave

457. The most important feature of the financing of trade union educational leave is that workers' organisations in many cases contribute to funding the institutions responsible, and in some countries even pay compensation for the remuneration of workers on educational leave. Trade union organisations may attempt to provide training for their members and representatives directly by setting up their own training centres, while employers and public authorities may contribute to the financing of such arrangements.

458. In Turkey, trade unions are required by legislation to allocate 5 per cent of their resources to the training of their members. (Endnote 114) In Mexico, the Confederation of Workers of Mexico runs its own training centre, the Workers' Education Institute, whose workers may follow courses and at the same time be paid by the trade union or the enterprise. In Czechoslovakia, workers who follow courses provided by a social body receive an allowance from the said body; however, such body may conclude an agreement with the enterprise under which the latter agrees to pay workers at an agreed rate, which is subsequently reimbursed by the body concerned. (Endnote 115)

459. The employer's contribution to the financing of trade union educational leave takes the form of the maintenance of the wage in all cases in which provisions require the grant of educational leave to workers' representatives in the enterprise: in such cases it is accepted that such expenditure is part of what is necessary for the proper running of the enterprise. The participation of some employers in the financing of trade union educational programmes may raise the question of the autonomy of workers' organisations and their control over the content of training and educational programmes. The report of the United States refers to an agreement between a trade union and a company to set up a training programme designed to use paid educational leave to provide training to trade union officials both on trade unionism and on sectoral economic problems. (Endnote 116)

460. The participation of the public authorities in the financing of trade union educational leave in most cases takes the form of subsidies granted to the training measures provided by the workers' organisations. In the United Kingdom, the Government subsidises the expenses incurred by trade unions in providing the trade union representatives in the undertaking with training on occupational safety and health and industrial relations within the framework of legal obligations. In Canada, the Ministry of Labour of the federal Government has introduced a programme of financial assistance to trade union education comprising financial support for the preparation of programmes concerning the trade union movement, industrial relations and conditions of work and the provision of grants enabling trade union members to follow courses, to carry out research projects or prepare teaching materials on subjects of interest to the trade union movement; the Government states that this financial effort is consonant with its desire to ensure an equitable distribution of training funds: educational establishments train students in management and administration and offer few courses in trade union education and it is this imbalance which the financial aid programme seeks to correct, at least in part.

Endnotes

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Cross references
Constitution: Article 19
Constitution: Article 22
Constitution: Article 35