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

Direct Request (CEACR) - adopted 2008, published 98th ILC session (2009)

Article 3 of the Convention. Prohibition of night work for women. Further to its previous comment, the Committee notes that, following the adoption of the Employment Act 2007, the prohibition against the employment of women in any industrial undertaking between 6.30 p.m. and 6.30 a.m., which was previously set out in section 28 of the Employment Act 1976, has been removed. The new Employment Act no longer contains any general prohibition of night work in industry, except for children under 18 years of age (section 59(1)). The Committee is, therefore, obliged to note that the Convention is not implemented any more in either law or practice.

In this regard, the Committee wishes to refer to paragraph 93 of its General Survey of 2001 on the night work of women in industry in which it firmly encouraged those governments which opted to no longer apply Convention No. 89 for reasons of gender equality and non-discrimination in employment to take concrete measures under ILO constitutional procedures with a view to formally terminating their obligations arising out of those Conventions. While recognizing that certain international treaty obligations might have grown outdated over time, the Committee considered that any contradiction between those obligations and domestic legislation should be properly removed in the interest of preserving a coherent body of international labour standards and giving full meaning to the role and function of the Organization’s supervisory organs. For all useful purposes, therefore, the Committee recalls that Convention No. 89 may be denounced every ten years and will again be open to denunciation for a period of one year as from 27 February 2011.

While noting the Government’s statement that it will consider ratification of the 1990 Protocol to Convention No. 89 once the National Labour Board is set up and deliberates on this matter, the Committee draws the Government’s attention to the fact that the Protocol was drafted for those countries which are not prepared to eliminate all restrictions on night work of women. Under the current circumstances, therefore, it would not be advisable for the Government to examine the possibility of ratifying the Protocol but rather the Night Work Convention, 1990 (No. 171), which is not devised as a gender-specific instrument but focuses on the protection of all night workers in all branches and occupations. The Committee requests the Government to keep the Office informed of any decision taken or envisaged with regard to the possible ratification of Convention No. 171.

Direct Request (CEACR) - adopted 2004, published 93rd ILC session (2005)

The Committee notes the Government’s succinct report indicating that there has been no change in the legislation affecting the practical application of the Convention, section 28(1) of the Employment Act No. 2 of 1976, still prohibiting women from performing work in industrial enterprises during the 12-hour period from 6.30 p.m. to 6.30 a.m. The Committee recalls however, that the Government has been announcing for a number of years, its intention to amend the above provision considering it to be discriminatory in nature.

The Committee takes this opportunity to refer to paragraphs 191 to 202 of its  General Survey of 2001 on night work of women in industry, in which it observed that the present trend is no doubt to move away from a blanket prohibition against women’s night work and to give the social partners the responsibility for determining the extent of the permitted exemptions. It also noted that many countries are in the process of easing or eliminating legal restrictions on women’s employment during the night with the aim of improving women’s opportunities in employment and strengthening non-discrimination. The Committee further recalled that member States are under an obligation to review periodically their protective legislation in light of scientific and technological knowledge with a view to revising all gender-specific provisions and discriminatory constraints. This obligation stems from Article 11(3) of the 1979 United Nations Convention on the Elimination of All Forms of Discrimination against Women (to which parenthetically Kenya acceded in 1984), as later reaffirmed in point 5(b) of the 1985 ILO resolution on equal opportunities and equal treatment for men and women in employment.

More concretely, the Committee considered that the Protocol of 1990 to Convention No. 89 was designed as a tool for smooth transition from outright prohibition to free access to night employment, especially for those States that wished to offer the possibility of night employment to women workers but felt that some institutional protection should remain in place to avoid exploitative practices and a sudden worsening of the social conditions of women workers, while the Night Work Convention, 1990 (No. 171), was drafted for the needs of those countries which would be prepared to eliminate all gender-specific restrictions on night work and to regulate night work for men and women alike.

In the light of the foregoing observations, the Committee invites the Government to give favourable consideration to the ratification of either the 1990 Protocol, which affords greater flexibility in the application of the Convention while remaining focused on the protection of female workers, or Convention No. 171, which shifts the emphasis from a specific category of workers and sector of economic activity to the safety and health protection of night workers irrespective of gender in nearly all branches and occupations. The Committee requests the Government to indicate any developments in this respect.

Direct Request (CEACR) - adopted 1990, published 77th ILC session (1990)

The Committee notes from the Government's report that the Government is proposing to amend section 28(1) of the Employment Act, 1976, which prohibits women from performing work in industrial enterprises between the hours of 6.30 in the evening and 6.30 in the morning.

The Committee hopes that the proposed amendment will remain within the limits of the obligations deriving from the ratification of the Convention. It recalls that this lays down, for women employed in industrial undertakings, a rest period of at least 11 consecutive hours, including an interval of at least seven consecutive hours falling between 10 o'clock in the evening and 7 o'clock in the morning.

The Committee requests the Government to indicate any developments in this respect.