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Article 3 of the Convention. General prohibition of night work for women. Further to its previous comment, the Committee notes the Government’s reference to Ministerial Order No. 183 of 2003 which was issued in accordance with section 89 of the Labour Code and which determines the type of work and conditions in which employment of women is prohibited between 7 p.m. and 7 a.m. According to the information provided by the Government, the Order provides that women may not be employed at any industrial undertaking, or at any of its branches, in the interval from 7 p.m. to 7 a.m. (section 1), except in cases of force majeure or work necessary to protect raw materials (section 4), while its provisions do not apply to women occupying responsible positions of a managerial or technical character (section 5). As the text of Ministerial Order No. 183 of 2003 is not available to the Office, the Committee requests the Government to transmit a copy.

While noting that the national legislation appears to be in substantial conformity with the requirements of the Convention, the Committee wishes to draw the Government’s attention to the fact that general protective measures for women 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 the specific needs of each country vary and that the universal acceptance of non-discrimination in employment and occupation as a fundamental human right may in some situations call for a phased approach. It is in this sense that the Committee concluded in paragraph 201 of its General Survey of 2001 on the night work of women in industry 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. Recalling that the Government had indicated in its previous report that both instruments were under consideration, the Committee requests the Government to keep the Office informed of any decision taken or envisaged in this regard.

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The Committee recalls its previous comments in which it drew the Government’s attention to certain legislative provisions allowing for broader exceptions to the prohibition of night work of women than those permitted under the Convention and called for their amendment. In its reply, the Government refers to the recently enacted Labour Code No. 12 of 2003 and states that, in elaborating the ministerial decisions giving effect to this Code, it will take into account the Committee’s comments. In this connection, the Committee notes that the new Labour Code no longer makes provision for a general prohibition of night work of women but stipulates in section 89 that the competent minister will determine by order the cases in which the employment of women will be prohibited from 7 p.m. to 7 a.m. The Committee further notes with interest the Government’s statement that the ratification of both the Night Work Convention, 1990 (No. 171) and the 1990 Protocol to Convention No. 89 are under consideration. The Committee takes this opportunity to refer to paragraphs 191 to 202 of its General Survey of 2001 on the night work of women in industry, in which it referred to the continued relevance of the instruments on women’s night work and observed that the present trend is no doubt to move away from a blanket ban on women’s night work and to give the social partners at the national level the responsibility for determining the extent of the permitted exemptions. In this respect, 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. It also suggested that greater efforts should be made by the Office to help those constituents who are still bound by the provisions of Convention No. 89, and who are not yet ready to ratify the new Night Work Convention, 1990 (No. 171), to realize the advantages of modernizing their legislation in line with the provisions of the Protocol. The Committee wishes therefore to draw the Government’s attention to the 1990 Protocol which affords greater flexibility in the application of the Convention while remaining focused on the protection of female workers. The Committee requests the Government to keep it informed of any progress made or decisions taken in this regard. Finally, the Committee would be grateful to the Government for providing in its next report, in accordance with Part V of the report form, all available information concerning the practical application of the Convention including, for instance, extracts from reports of inspection services, statistics on the number of workers covered by relevant legislation, the application of the exceptions allowed under the provisions of the Convention, etc.

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The Committee notes the information supplied by the Government in its reports.

In its previous comments, the Committee had drawn attention to section 2 of the Ministerial Order No. 23 of 7 February 1982, which authorizes women’s work between 8 p.m. and 10 p.m. in spinning and weaving companies and factories in the event that male workers are not available, and had noted that such exception is not consistent with the provisions of the Convention. In its reply, the Government indicates that section 2 of the above Ministerial Order is not currently applied as it was issued in former circumstances which are no longer present. The Committee takes note of this information and requests the Government to consider the possibility of repealing the provision in question in order to remove any uncertainty as to where the positive law stands in this respect.

The Committee further reiterates its previous comment to the effect that section 152 of Act No. 137 of 6 August 1981 promulgating the Labour Code appears to allow for much broader exceptions to the prohibition of night work for women than those permitted under the Convention since it provides that no women may be employed between 8 p.m. and 7 a.m. except in such cases, types of work and circumstances as may be prescribed by order of the Minister of Manpower and Training.

The Committee trusts that the necessary measures will be adopted in the near future to ensure that any exceptions to the night work prohibition are strictly limited to the cases specified in Articles 3, 4, 5 and 8 of the Convention. The Committee requests the Government to keep it informed of any progress achieved in this regard.

The Committee takes this opportunity to invite the Government to give favourable consideration to the ratification of either the Night Work Convention, 1990 (No. 171) or the Protocol of 1990 to Convention No. 89.

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The Committee notes the information supplied by the Government in its reports.

The Committee refers to its previous comments. It notes with interest the Government's statement that section 1(5) of Ministerial Order No. 23 of 7 February 1982, under which women may work between 8 p.m. and 7 a.m. in the joint projects established in accordance with Act No. 43 of 1974 concerning the use of Arab and foreign capital and free zones, which was amended by Act No. 32 of 1977, has been repealed by virtue of Act No. 230 of 1989 respecting enterprises. The Committee notes from the Government's report that Act No. 230 of 1989 does not deal with the question of night work by women and that it is therefore necessary to refer to the Labour Code, No. 137 of 1981. It notes that by virtue of section 152 of the Labour Code, it is prohibited to cause women to work between 8 p.m. and 7 a.m. except in cases, jobs and circumstances which are determined by order of the Minister of State for Manpower and Training. The Committee also notes from the Government's report that, by virtue of section 2 of Ministerial Order No. 23 of 7 February 1982, work by women is authorized between 8 p.m. and 10 p.m. in spinning and weaving companies and factories in the event that male workers are not available.

The Committee recalls that the Convention does not provide for any exception to the prohibition of the night work of women on the grounds of the non-availability of male workers. It also recalls the possibilities of flexibility offered by the Protocol of 1990 to the Night Work (Women) Convention (Revised), 1948. It hopes that the necessary measures will be taken to give effect to the Convention and requests the Government to supply information on any progress achieved in this respect.

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The Committee notes from the Government's last report that, by virtue of section 1(5) of Order No. 23 of 1982 concerning night work by women, women may be made to work between 8 p.m. and 7 a.m. in the joint projects established in accordance with the provisions of Act No. 43 of 1974 concerning the use of Arab and foreign capital and free zones, amended by Act No. 32 of 1977, where working conditions require work during the above hours.

The Committee would be grateful if the Government would indicate in its next report the type of work involved in the above mentioned projects.