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

Repetition

Article 2 of the Convention. Definition of the term “night”. The Committee notes the Government’s indication that draft section 36 of the revised Labour Code is expected to align the definition of the term “night” with the requirements of Article 2 of the Convention, thus providing for a period of at least 11 consecutive hours including an interval of at least seven consecutive hours falling between 10 p.m. and 7 a.m. The Government adds that the tripartite committee entrusted with the revision of the Labour Code will examine the Committee’s additional observations and will also consider the informal opinion prepared by the Office in 2003 concerning the meaning and implications of certain provisions of the 1990 Protocol to Convention No. 89. The Committee requests the Government to keep the Office informed of any progress made in the finalization of the revised Labour Code and to transmit a copy of the new text once it has been adopted.

More generally, while noting that the labour legislation continues to apply a general prohibition against the employment of women in the industrial sector during the night, the Committee wishes to draw the Government’s attention to the fact that protective measures for female workers, such as blanket prohibitions or restrictions – as contrasted with special measures aimed at protecting women’s reproductive and maternal capacity – are increasingly subjected to extensive criticism as obsolete and unnecessary infringements of the fundamental principle of equality of opportunity and treatment between men and women. The Committee is fully aware, of course, that as a long-term goal, the full application of the principle of non-discrimination will only be attained progressively through appropriate legal reforms and varying periods of adaptation, depending on the stage of economic and social development or the influence of cultural traditions in a given society. It is in this sense that the Committee considered in paragraph 169 of its General Survey of 2001 on the night work of women in industry that “the protections afforded by Convention No. 89 and its Protocol should be available to those women who need them, but they should not be used as a basis for denying all women equal opportunity in the labour market”. It went on to conclude in paragraph 201 that “Convention No. 89, as revised by the 1990 Protocol, retains its relevance for some countries as a means of protecting those women who need protection from the harmful effects and risks of night work in certain industries, while acknowledging the need for flexible and consensual solutions to specific problems and for consistency with modern thinking and principles on maternity protection”. The Committee therefore hopes that in the context of the ongoing revision process of the Labour Code, the Government will not fail to examine, in consultation with the social partners, and in particular with women workers, the possibility of modernizing its legislation by ratifying either the 1990 Protocol to Convention No. 89, which opens up the possibility for women to work at night under certain well-circumscribed conditions, or the Night Work Convention, 1990 (No. 171), which applies to all night workers in all branches and occupations. It requests the Government to keep the Office informed of any decision taken or envisaged in this regard.