Demande directe (CEACR) - adoptée 2008, publiée 98ème session CIT (2009)

Article 3 of the Convention. General prohibition of night work for women. While noting the Government’s reference to Ministerial Order No.16/MTLS/DEGRE of 27 May 1969 on employment of women, which continues to give full effect to the requirements of the Convention, the Committee wishes to draw the Government’s attention to the fact that general protective measures for female workers, such as blanket prohibitions or restrictions – as contrasted to 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, however, 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”. In light of these observations, the Committee invites the Government in consultation with the social partners, and in particular with women workers, to consider 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-specified conditions, or the Night Work Convention, 1990 (No. 171), which applies to all night workers in all branches and occupations. The Committee recalls that the Government may wish to seek the assistance of the Office with a view to better understanding the possibilities and implications of each of these two instruments and revising existing legislation accordingly. It requests the Government to keep the Office informed of any decision taken or envisaged in this regard.