Observation (CEACR) - adoptée 1995, publiée 82ème session CIT (1995)

The Committee recalls that it has been commenting on the question of delimiting the night period ever since the ratification of the Convention. It has drawn attention to section 68 of the 1931 Federal Labour Act, the substance of which was the same as section 60 of the 1969 Federal Labour Act.

In the comments it has been making since 1972, the Committee has noted that under section 60 of the 1969 Federal Labour Act, work carried out between 8 p.m. and 6 a.m. shall be deemed to be night work. The term "night" used in this provision accordingly refers to a period of ten consecutive hours. The Committee recalled that, under Article 2, paragraph 1, of the Convention, the term "night" signifies a period of at least 12 consecutive hours. It asked the Government to indicate the measures taken to remove this major discrepancy between the national legislation and the Convention.

The Government has consistently stated that the legislation is not at variance with the Convention on this point. However, until 1990, it indicated in its reports that a Bill was to be considered by the competent authorities, which would define night work for young people under the age of 18 as a period of 12 consecutive hours. The text of the Bill was sent by the Government in 1975. In its report for 1993 the Government indicated that it was not planning to review the Federal Labour Act in the short term. It stated that if section 60 of the Federal Labour Act was not consistent with Article 2 of the Convention, the provision of the Convention would prevail over that of the national law pursuant to article 133 of the Constitution which gives legal precedence to a ratified international treaty over domestic law.

The Committee recalls that Article 2 of the Convention fixes not working time but a period of 12 hours, at "night", during which work by young people of under 18 years of age is prohibited. The 12-hour period comprises intervals, which vary according to age, for the authorized exceptions to the principle that night work by children and young people of under 18 years is prohibited. The Committee again recalls that section 60 of the Federal Labour Act, by specifying that work done between 8 p.m. and 6 a.m. shall be deemed to be night work, lays down a period of ten hours. By thus establishing a period termed "night" as a period of ten hours, section 60 of the Federal Labour Act is inconsistent with Article 2, paragraph 1, of the Convention which requires this period to be 12 hours long.

The Committee again asks the Government to take the necessary measures to bring the Federal Labour Act into conformity with the Convention on this point. In view of the fact that this situation has prevailed over a considerable period of time, the Committee suggests that the Government might wish to make use of the technical assistance of the International Labour Office to resolve the matter.