Direct Request (CEACR) - adopted 2005, published 95th ILC session (2006)

The Committee notes the Government’s report which indicates that the Committee’s previous comments concerning the inconsistencies between the national legislation and the provisions of the Convention will be taken into consideration in the ongoing revision process of the Employment Act of 1980.

The Committee takes this opportunity to draw the Government’s attention to paragraphs 191 to 202 of the General Survey of 2001 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 is 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 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 UN Convention on the Elimination of All Forms of Discrimination against Women (to which parenthetically Swaziland became party in 2004), 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. On the other hand, 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 role) and offer appropriate protection to all night workers irrespective of gender and occupation. The Committee also suggested that, in addition to promoting the ratification of the new night work Convention, 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 Convention No. 171, to realize the advantages of modernizing their legislation in line with the provisions of the Protocol.

In the light of the foregoing observations, the Committee once again invites the Government to contemplate ratifying 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 and trusts that the Government will give due consideration to the views summarized above in pursuing the revision of the Employment Act.

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 female workers covered by relevant legislation, the application of the exceptions allowed under the provisions of the Convention, etc.