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

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

Article 1 of the Convention. Definition of “night worker”. The Committee notes that even though section 80 of the Labour Code (Act No. 7961 of 12 July 1995), as amended, defines the term, “night work” as the work carried out from 10 p.m. until 6 a.m., there is no specific definition of the term “night worker”. Recalling that several provisions of the Convention apply specifically to night workers (e.g. Article 4 on health assessment, Article 6 on treatment of workers medically unfit for night work or Article 8 on compensation), the Committee invites the Government to consider the possibility of introducing a definition of the term, “night worker”, as appropriate, along the lines suggested in this Article of the Convention.

Article 4. Health assessment. The Committee notes the Government’s reference to the Decree of the Council of Ministers No. 692 of 13 December 2001 concerning specific security and health protection measures at work. While noting that section 9 of the Decree provides, in general, for regular medical examinations of workers at the employer’s expenses, the Committee recalls that this Article of the Convention requires special protective measures in view of the inherent risks of night work, including health assessment before a night worker takes up an assignment, advice on how to reduce or avoid health problems associated with night work, or medical assistance whenever night workers experience health problems during their assignment. It therefore requests the Government to indicate how effect is given to this Article of the Convention.

Article 5. Medical services for night workers. The Committee notes the Government’s reference to section 75 of the Labour Code which requires all enterprises to provide their workers with first aid kits and to train at least one personnel member of each group of the enterprise to give first aid in emergency cases. In this connection, it recalls that the Convention requires that suitable first aid facilities be made available for workers performing night work, including arrangements whereby such workers, where necessary, can be taken quickly to a place where appropriate treatment can be provided. The Committee therefore requests the Government to explain how effect is given to this requirement of the Convention.

Article 6. Treatment of workers medically unfit for night work. The Committee notes that section 101 the Labour Code prohibits night work for those recognized as invalids on the basis of a medical report and in accordance with the law on social insurance. It recalls, however, that the Convention provides that workers who are permanently unfit to work at night – but may not necessarily be unfit for day work – should be either: (i) transferred to a similar job for which they are fit; or (ii) if their transfer to an alternative position proves impracticable, be entitled to the same benefits (for instance unemployment, sickness or disability benefits) as those day workers who are generally unfit for work. Moreover, workers who are temporarily unfit for night work must be given the same protection against dismissal as other workers who are prevented from working for health reasons. It therefore requests the Government to specify how these provisions of the Convention are implemented in law and practice.

Article 7. Protection of women workers during maternity. The Committee notes that section 108(1) of the Labour Code prohibits pregnant women to perform night work. It also notes that section 104(1) of the Labour Code provides that pregnant women are forbidden to work during 35 days (five weeks) before the expected date of child birth and 42 days (six weeks) after the birth of the child. In this connection, the Committee recalls that this Article of the Convention requires that an alternative to night work (e.g. similar or equivalent day work) be available to women workers for a period of at least 16 weeks, of which at least eight weeks before the expected date of childbirth, or for longer periods if this is medically necessary for the health of the mother or the child. Apart from transfer to a day work post, the Convention also provides for the possible extension of the maternity leave and further requires that during the above periods women workers be protected against unfair dismissal and that the level of their income and benefits regarding status, seniority and access to promotion be maintained. The Committee accordingly requests the Government to explain how effect is given to the above requirements of the Convention. It would also appreciate it if the Government would provide a copy of the special rules for the working conditions concerning pregnant or breastfeeding women, as provided for in section 104(2) of the Labour Code, as well as a copy of the specific rules for cases where women and breastfeeding mothers are permitted to work at night, as provided for in section 108(2) of the Labour Code.

Article 9. Social services. The Committee recalls that by “social services” the Convention intends to cover a large variety of measures, including but not limited to the provision of food and beverages. It also ventures to draw the Government’s attention to Paragraphs 13–18 of the Night Work Recommendation, 1990 (No. 178), which offer guidance as to other measures which might be considered appropriate for night workers, such as collective transport arrangements, suitably equipped resting facilities, flexible hours for crèches, and adaptable cultural, sporting or recreational activities. It therefore requests the Government to indicate any concrete measures taken or envisaged to give effect to this provision of the Convention.

Article 10. Consultation with the social partners on night work. The Committee notes the Government’s reference to section 163 of the Labour Code, under which employers are under the obligation to negotiate, upon request by a representative organization of employees, binding collective agreements containing, among others, clauses on conditions of employment. The Committee recalls, however, that this Article of the Convention does not call for the conclusion of a collective agreement, but for simple consultations with workers’ representatives before introducing work schedules involving night work, particularly with a view to ensuring that all occupational safety and health aspects or social implications of night work are sufficiently taken into account. It therefore requests the Government to explain how effect is given to this Article of the Convention.

Finally, with regard to the specific points raised above concerning the application of Articles 4–10 of the Convention, the Committee considers it important to recall that the Convention offers the possibility of a progressive implementation of the specific measures required by the nature of night work.

Part V of the report form. Application in practice. The Committee would be grateful if the Government would provide information regarding the application of the Convention in practice, including, for instance, extracts from inspection reports, copies of official studies on the extent and effects of night working in general, the approximate number of workers covered by relevant legislation as well as any difficulties encountered in the application or enforcement of the Convention.