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Article 3 of the Convention. Prohibition of night work for women. Further to its previous comment in which the Committee noted that the new Labour Code of 2006 gives no longer effect to the provisions of the Convention, the Committee notes the Government’s explanations that night work is rather rare, almost non-existent, due to the low level of industrialization and that Convention No. 89 is one of those ratified Conventions which remain practically without object in everyday life. The Government adds that, even though since independence the participation of women in the workforce has been constantly on the increase, especially in the education and health sectors and central administration, the employment of women during the night is a phenomenon generally unknown to the public that the Government has not considered it useful to regulate. The Government indicates, however, that it intends to examine measures to ensure compliance with the requirements of the Convention in the framework of the National Council of Labour, Employment and Vocational Training when it meets next.

While noting these explanations and fully understanding the Government’s decision to eliminate all gender-specific restrictions on night work, the Committee once again draws attention to 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 all night workers. Under the circumstances, the Committee considers that the Government should consult the National Council of Labour, Employment and Vocational Training on the possible ratification of Convention No. 171, which would offer appropriate protection to all night workers irrespective of gender and occupation, rather than on the reintroduction of women-specific restrictions in conformity with Convention No. 89.

In this connection, the Committee wishes to refer to paragraphs 92–93 of its General Survey of 2001 on the night work of women in industry in which it noted with concern the large number of member States which opted to no longer apply one of the relevant Conventions Nos 4, 41 or 89 without however taking any concrete measures under ILO constitutional procedures with a view to formally terminating their obligations arising out of those Conventions. The Committee accordingly insisted that the governments concerned should take the necessary action to remove any contradiction between international treaty obligations, that might had grown outdated over time, and domestic legislation in the interest of preserving a coherent body of international labour standards and giving full meaning to the Organization’s supervisory organs. For all useful purposes, the Committee recalls that 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. The Committee therefore 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 provided in the Government’s report, in particular the adoption of the new Labour Code, Act No. 133/AN/05/5ème L of 28 January 2006. It also notes the comments on the application of the Convention that were received from the General Union of Djibouti Workers (UGTD) on 23 August and transmitted to the Government on 21 September 2007. The Committee notes that, as pointed out by the UGTD, the new Labour Code no longer provides for a general prohibition against women’s night work with the exception of young workers below 18 years of age (section 94) and pregnant women on condition that they are medically certified as temporarily unfit for night work (section 112). The Committee therefore observes that the Convention has for all practical purposes ceased to apply. The Committee notes, however, that under section 111 of the Labour Code, the types of work and categories of enterprises prohibited to women are established by Order of the Ministers of Labour and Health upon recommendation of the National Council of Labour, Employment and Vocational Training. The Committee requests the Government to specify whether the Ministerial Order referred to in section 111 of the new Labour Code has already been issued and, if so, to transmit a copy.

The Committee takes this opportunity to draw the Government’s attention to paragraphs 191–202 of the 2001 General Survey on the night work of women in industry in which the Committee, referring to the present-day relevance of the ILO instruments on women’s night work, concluded that there can be no doubt that the current trend was clearly in favour 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. It also noted that many countries were 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 were 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 UN Convention on the Elimination of All Forms of Discrimination against Women (to which parenthetically Djibouti acceded in 1998), 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, whereas the Night Work Convention, 1990 (No. 171), was drafted for those countries which would be prepared to abolish all women-specific restrictions on night work (except for those aimed at protecting women’s reproductive and infant-nursing roles) and offer appropriate protection to all night workers irrespective of gender and occupation.

In the light of the foregoing observations, the Committee invites the Government to give favourable consideration to the ratification of either Convention No. 171, which shifts the emphasis from a specific category of workers and sector of economic activity to the safety and health protection of all night workers, or the 1990 Protocol which affords considerable flexibility in the application of Convention No. 89 while remaining focused on the protection of female workers. The Committee asks the Government to keep the Office informed of any decision taken in this regard.