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Article 3 of the Convention. Prohibition of night work of women. With reference to its previous comments, the Committee notes the Government’s reply about the need to undertake broad consultations with the social partners with a view to harmonizing the national legislation with the principle of gender equality and eventually ratifying the 1990 Protocol to Convention No. 89. The Committee recalls, in this connection, that, should the Government decide, in consultation with its social partners, to remove all restrictions on women’s night work for reasons of equality between men and women and non-discrimination in employment and occupation, it may wish to consider the ratification of the Night Work Convention, 1990 (No. 171), which is not devised as a gender-specific instrument but focuses on the safety and health protection of all night workers irrespective of gender in all branches and occupations. In case the Government decides that the latter instrument better reflects the socio-economic needs of the country and corresponds more closely to the Government’s priorities in matters of women’s employment promotion, it will have to formally terminate its obligations under Convention No. 89 when the Convention will again be open to denunciation, that is from 27 February 2011 to 27 February 2012. Recalling that the Committee has been inviting the Government since 2000 to take the necessary steps in these matters, it requests the Government to keep the Office informed of any further developments concerning the ratification of the 1990 Protocol to Convention No. 89 or, alternatively, of Convention No. 171.

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Article 3 of the Convention. Prohibition of night work for women. Following up on its previous comment, the Committee notes the Government’s explanations that it intends to examine carefully the advisability and implications of the possible ratification of the 1990 Protocol to Convention No. 89 as a means of adapting the national legislation to new economic and social realities and innovatory forms of work, such as flexible hours and telework. In this connection, the Government refers to a communication of the National Women’s Institute, dated 3 July 2008, in which it is stressed the importance of ratifying the 1990 Protocol with a view to bringing the national legislation into line with other ratified instruments, such as the UN Convention on the Elimination of All Forms of Discrimination Against Women and the ILO Discrimination (Employment and Occupation) Convention, 1958 (No. 111). A similar view was expressed by the Gender Equality Department of the Ministry of Labour and Social Security in a letter dated 30 June 2008, in which the ratification of the Protocol was recommended as a tool for smooth transition from outright prohibition to free access to night employment. The Government indicates that it will launch a vast process of consultations on this matter and that it will report on the results obtained.

In this connection, the Committee wishes to draw once more the Government’s attention to the fact that member States are increasingly required to initiate a review process of their protective legislation aiming at the gradual elimination of any provisions which would be contrary to the principle of equal treatment between men and women, except those connected with maternity protection, and with due account being taken of national circumstances. The Committee, therefore, invites the Government to favourably consider the possibility of ratifying either the 1990 Protocol to Convention No. 89, which offers greater flexibility by allowing exemptions from the prohibition of night work and variations in the duration of the night period through agreements between the employers and workers, or the Night Work Convention, 1990 (No. 171), which shifts the emphasis from a specific category of workers and a sector of economic activity to the protection of night workers irrespective of gender in all branches and occupations. The Committee recalls that the Government may, if it so wishes, draw upon the expert advice and technical assistance of the International Labour Office for the purpose of revising and adapting existing legislation. It requests the Government to keep the Office informed of the ongoing consultations in these matters and of any decision taken or envisaged with regard to the possible ratification of the 1990 Protocol or of Convention No. 171.

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The Committee recalls its previous observation in which it noted that, following the adoption of Decree No. 26898-MTSS of 30 March 1998, the general prohibition on women’s night work has been relaxed and that the authorization of the employment of women on night shifts for reasons of national interest is not consistent with Article 5 of the Convention which is only applicable "in case of serious emergency". In its reply, the Government makes reference to specific provisions of other international instruments, such as article 24 of the 1948 Universal Declaration of Human Rights and article 7(d) of the 1966 International Covenant on Economic, Social and Cultural Rights dealing with the right to rest and leisure including reasonable limitation of working hours and periodic holidays with pay, and article 5(e)(i) of the 1966 International Convention on the Elimination of All Forms of Racial Discrimination seeking to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to work, to free choice of employment, to just and favourable conditions of work, to protection against unemployment, to equal pay for equal work and to just and favourable remuneration. In the Committee’s view, however, the above instruments are at best remotely relevant to the subject matter of this Convention and certainly do not constitute valid grounds for suspending the application of its provisions.

The Committee takes this opportunity to refer to paragraphs 191 to 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 general prohibition against women’s night work and to give the social partners the responsibility for determining the extent of the permitted exemptions. In this respect, the Committee indicated 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 whereas the Night Work Convention, 1990 (No. 171), was drafted for those countries which would be prepared to eliminate all women-specific restrictions on night work (except for those aimed at protecting women’s reproductive and infant nursing role) while seeking to improve the working and living conditions of all night workers. Therefore, the Committee once again invites the Government to give favourable consideration to the ratification of either the 1990 Protocol, which affords greater flexibility in the application of the Convention, or the Night Work Convention, 1990 (No. 171), which shifts the emphasis from a specific category of workers and sector of economic activity to the safety and health protection of night workers irrespective of gender in nearly all branches and occupations. The Committee asks the Government to keep the Office informed of any decision taken in this regard.

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The Committee notes the information provided in the Government’s reports.

The Committee notes that, even though women’s night work remains, in principle, generally prohibited in accordance with article 88 of the Labour Code, article 1 of Decree No. 26898-MTSS of 30 March 1998 authorizes the employment of women during the night in industrial undertakings for reasons of national interest. According to the text of the Decree, there was an imperative need to update the regulation of night work since restrictions on women’s night work constituted sex discrimination contrary to the constitutional principle of equality and the principle of free access to employment. The Committee is led, therefore, to conclude that by adopting Decree No. 26898-MTSS the Government has lifted the general prohibition of night work for women and has thus ceased to apply the Convention.

In addition, the Committee notes that the Decree refers to Article 5 of the Convention, which, however, only relates to suspension "when in case of serious emergency the national interest demands it", and has therefore no bearing with the Decree of 1998.

The Committee recalls that the principal obligation for a government arising out of the ratification of an international labour Convention is to take such action as may be necessary to make effective the provisions of the ratified Convention, and to continue to ensure its application for as long as it does not decide to denounce it. Therefore, the Committee asks the Government to indicate the measures it intends to take to bring national legislation into conformity with the Convention.

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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With reference to its previous comments, the Committee notes the information supplied by the Government in its report.

The Committee hopes that the Government will continue to supply information on the practical application of the Convention.

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The Committee notes the Government's report.

In its previous comments, the Committee noted the comments made by the Trade Union Association of Customs Officials (ASEPA) on the application of the Convention. In its comments, the ASEPA states that, by virtue of Executive Decree No. 23116-MP, published in La Gaceta No. 76 of 21 April 1994, provisions were issued which contravened the terms of labour law and ratified Conventions, including Convention No. 89. The ASEPA also states that the appeal against Executive Decree No. 23116-MP which violates ratified Conventions, including Convention No. 89, was rejected by the constitutional court on its substance, without considering its implications.

The Committee observes that Executive Decree No. 23116-MP relates to the nature of the work and the organizational and environmental conditions for customs handlers, customs operations technicians 1 and 2, customs officials 1, 2, 3, 4, 5, 6 and 7, the Deputy Director-General of Customs and the Director-General of Customs and that, in its view, they do not relate in any way to the provisions of the Convention.

The Committee notes the Government's statement to the effect that the comments made by ASEPA (Case No. 1808 (290th Report of the Committee on Freedom of Association, 263rd meeting of the Governing Body, June 1995)) received a detailed reply in official letter OAI-DM-015-95 dated 4 May 1995.

The Committee notes that none of the recommendations of the Committee on Freedom of Association related to the application of the Convention.

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The Committee notes the comments made by the Trade Union Association of Customs Officials (ASEPA) on the application of the Convention.

In its comments, the ASEPA states that, by virtue of Executive Decree No. 23116-MP, published in La Gaceta No. 76 of 21 April 1994, provisions were adopted which contravene the terms of labour law and ratified Conventions, including Convention No. 89. The ASEPA also states that the appeal against Executive Decree No. 23116-MP, which violates ratified Conventions, including Convention No. 89, was rejected by the Constitutional Court on its substance, without considering its implications.

The Committee trusts that the Government will supply detailed comments on this information, which was transmitted by letter dated 17 January 1995.