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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.

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The Committee notes the information contained in the Government’s report, in particular the adoption of Act No. 2002-20 of 6 August 2002 which repeals the prohibition on women’s night work in line with the legislation currently in force in metropolitan France and the Government’s international commitments. The Committee notes that section 35 of Ordinance No. 85-1181 of 13 November 1985, as amended by Act No. 2002-20, no longer prohibits women workers from being employed in industrial undertakings during the night, defined as the seven-hour period between 10 p.m. and 5 a.m., but merely provides that night workers may request their transfer to day work positions if night employment is incompatible with family responsibilities such as childcare or support for dependants. The Committee therefore concludes that for all practical purposes the Convention has ceased to apply.

In this connection, the Government’s attention is drawn to paragraphs 191-202 of the 2001 General Survey on the night work of women in industry in which the Committee took the view that the present trend is clearly in support of lifting all restrictions on women’s night work and formulating gender-sensitive night work regulations offering safety and health protection to both men and women. The Committee further indicated that 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.

Considering, therefore, the Government’s decision to no longer give effect to this Convention, and also recalling the need for an appropriate legal framework addressing the problems and hazards of night work in general, the Committee invites the Government to give favourable consideration to the ratification of 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 it informed of any decision taken in this regard.

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The Committee notes that the Government’s report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its previous direct request, which read as follows:

The Committee refers to its previous comments in which it had noted that the regulations applying in the territory did not provide for a nightly rest of at least 11 consecutive hours for women workers as required under Article 2 of the Convention. The Committee notes that article 34 of Ordinance No. 85-1181 of 13 November 1985, was amended by Act No. 96-609 of 5 July 1996, so that night work may be defined as work performed during any period of seven consecutive hours falling between 8 p.m. and 5 a.m. The variations in the duration of the night period may be introduced by means of territorial regulations, or in default of such regulations through collective agreement, or in default of collective agreement through an agreement in the establishment or enterprise concerned, or upon the authorization of the labour inspector subject to certain conditions. The Committee is bound, therefore, to note once more that, as the Government points out in its report, the national legislation fails to guarantee a nightly rest of at least 11 consecutive hours for women workers as provided for in the Convention.

The Committee also notes that, according to the Inter-professional Territorial Agreement of 1994, a rest period of at least 11 consecutive hours would be guaranteed. The Committee requests the Government to supply a copy of the Agreement in question. The Committee hopes, nevertheless, that measures would be taken to bring national legislation into full compliance with the Convention.

Finally, the Committee recalls that in an earlier report the Government had indicated its intention to ratify Convention No. 171. It asks the Government to provide information on any developments in this regard.

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The Committee refers to its previous comments in which it had noted that the regulations applying in the territory did not provide for a nightly rest of at least 11 consecutive hours for women workers as required under Article 2 of the Convention. The Committee notes that article 34 of Ordinance No. 85-1181 of 13 November 1985, was amended by Act No. 96-609 of 5 July 1996, so that night work may be defined as work performed during any period of seven consecutive hours falling between 8 p.m. and 5 a.m. The variations in the duration of the night period may be introduced by means of territorial regulations, or in default of such regulations through collective agreement, or in default of collective agreement through an agreement in the establishment or enterprise concerned, or upon the authorization of the labour inspector subject to certain conditions. The Committee is bound, therefore, to note once more that, as the Government points out in its report, the national legislation fails to guarantee a nightly rest of at least 11 consecutive hours for women workers as provided for in the Convention.

The Committee also notes that, according to the Inter-professional Territorial Agreement of 1994, a rest period of at least 11 consecutive hours would be guaranteed. The Committee requests the Government to supply a copy of the Agreement in question. The Committee hopes, nevertheless, that measures would be taken to bring national legislation into full compliance with the Convention.

Finally, the Committee recalls that in an earlier report the Government had indicated its intention to ratify Convention No. 171. It asks the Government to provide information on any developments in this regard.

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In its previous comments, the Committee noted that the regulations applying in the territory did not guarantee women a night rest period of at least 11 consecutive hours, in accordance with Article 2 of the Convention.

The Committee notes that, according to the Government's report, the Territorial Congress will shortly be bound by the provisions of the 1990 Night Work Convention (No. 171). It asks the Government to indicate the measures taken to bring the legislation into conformity with its international obligations.

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Article 2 of the Convention. The Committee notes the adoption of Ordinance No. 85-1181 of 13 November 1985 respecting the guiding principles of labour law and the organisation and functioning of the Labour Inspectorate and the Labour Tribunal of New Caledonia, which repeals Ordinance No. 82-1144 of 23 December 1982 which gave effect to the provisions of the Convention.

Under the terms of the new Ordinance, the night work of women is prohibited between 10 p.m. and 5 a.m. The Committee points out that for the purposes of the Convention the term "night" signifies a period of at least 11 consecutive hours, including an interval of at least seven consecutive hours falling between 10 o'clock in the evening and 7 o'clock in the morning.

The Committee requests the Government to indicate the measures that have been taken or are envisaged to guarantee women a break at night of at least 11 consecutive hours in accordance with this Article of the Convention.