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Article 3 of the Convention. Prohibition of night work for women. Further to its previous comment, the Committee notes the adoption of the new Labour Code of 13 February 2008, which no longer gives effect to the main requirement of the Convention. This was already the case under the previous legislation (section 35 of Ordinance No. 85-1181 of 13 November 1985, as amended by Law No. 2002-20 of 6 August 2002). The new Labour Code defines night work as any work performed between 10 p.m. and 5 a.m. (section Lp.222-19), allows night workers to request their transfer to day-work positions if night employment is incompatible with family responsibilities such as childcare or support for dependants (section Lp.222-20), and prohibits night work only for young workers under 18 years of age (section Lp.253-1).

The Committee has been drawing for a number of years the Government’s attention to the fact that the Convention is no longer implemented in either law or practice and that appropriate consideration should be given to the possibility of formally terminating the acceptance of the obligations arising out of Convention No. 89 and ratifying instead the new Night Work Convention, 1990 (No. 171), which focuses on the protection of all night workers irrespective of gender, in all branches and occupations.

In this connection, the Committee refers once again to paragraph 93 of its General Survey of 2001 on the night work of women in industry, in which it expressed the view that any contradiction between the legal obligations arising out of the ratification of an international labour Convention and existing domestic legislation should be properly removed in the interest of preserving a coherent body of international labour standards and giving full meaning to the Organization’s supervisory organs. The Committee recalls that, for all useful purposes, 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. Whereas the Government of France denounced the Convention on 27 February 1992, no declaration modifying the terms of the acceptance of the obligations of the Convention for New Caledonia has so far been communicated (as provided for in article 35 of the ILO Constitution) and therefore the Government of New Caledonia remains bound by the provisions of the Convention until such a declaration is made in accordance with Article 15(2) of the Convention. The Committee again invites the Government to give favourable consideration to the ratification of Convention No. 171 and to keep the Office informed of any decision taken with respect to Convention No. 89.