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Article 3 of the Convention. General prohibition of night work for women. The Committee notes the Government’s reference to the Ministerial Order No. 46/1 of 1980 which specifies the tasks in which the employment of women is allowed during the night, i.e. the period from 10 p.m. to 7 a.m. While most of the types of work contained in the Order do not relate to industrial undertakings, and therefore are not strictly relevant to the application of the Convention, the Committee notes that “work for the purpose of meeting abnormal work pressures” goes beyond the permissible exceptions set out in Articles 4, 5 and 8 of the Convention. In this respect, the Committee suggests that the Government might wish to consider the possibilities offered by the 1990 Protocol to Convention No. 89 for broader exemptions from the night work prohibition and variations in the duration of the night period, while maintaining the focus on women’s protection from arduous working conditions.
The Committee wishes to draw once more the Government’s attention to the fact that general protective measures for female workers, such as blanket prohibitions – as contrasted to special measures aimed at protecting women’s reproductive and maternal capacity – are increasingly regarded 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 2001 General Survey 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. It requests the Government to keep the Office informed of any decision taken or envisaged in this regard.
The Committee notes that according to the information contained in the Government’s report the application of the Convention is observed in law and practice in all parts of the country and there have been no new legislative or other measures taken in this regard.
The Committee takes this opportunity to refer to paragraphs 191-202 of its 2001 General Survey on the 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, 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. 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. Therefore, the Committee invites the Government to give favourable consideration to the ratification of the 1990 Protocol which affords greater flexibility in the application of the Convention while remaining focused on the protection of female workers. Finally, the Committee would be grateful to the Government for providing, in accordance with Part V of the report form, up-to-date 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.