Observation (CEACR) - adoptée 2004, publiée 93ème session CIT (2005)

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.