Observation (CEACR) - adoptée 2008, publiée 98ème session CIT (2009)

Article 1, paragraph 1(a), of the Protocol to the Convention. Exemptions from prohibition and variations in the night period. The Committee has been drawing attention to this provision of the Protocol which requires the express agreement of – and not mere consultation with – employers’ and workers’ organizations at the branch or enterprise level before any variation in the duration of the night period or exemption from the prohibition of night work can be introduced. In its last report, the Government indicates that the proposed amendment of section 66 of the Factories Act 1948 will duly reflect the Committee’s comments and will be in conformity with the requirements of the Protocol. Noting that the amendment is currently pending consideration by the Parliament, the Committee asks the Government to transmit a copy of the revised text of the Factories Act 1948 once it has been adopted. In this connection, the Committee notes the new comments communicated by the Centre of Indian Trade Unions (CITU) on 25 August 2008 according to which the Government has not yet reacted to the concrete suggestions and concerns expressed earlier on the application of the Convention and the proposed amendment of section 66 of the Factories Act. Noting that the Government has not yet replied to the previous observations of the CITU, dated 24 August 2005, the Committee invites the Government to express its views in response to both communications of the CITU.

Article 2, paragraph 1, of the Protocol. Maternity protection. The Committee notes the Government’s reference to sections 10 (additional leave for illness arising out of pregnancy) and 12 (protection against unfair dismissal) of the Maternity Benefit Act 1961 which are nonetheless not relevant with Article 2, paragraph 1, of the Protocol which prohibits to apply any negotiated exemptions from the prohibition of night work or variations in the duration of the night period to women workers during a period of at least 16 weeks before and after childbirth. The Committee therefore asks the Government to take appropriate action in order to bring the national legislation into full conformity with the Protocol in this regard.

Article 5 of the Convention. Suspension of the prohibition of night work in case of serious emergency. The Committee notes the Government’s statement that state governments may grant exemptions from the prohibition of night work on account of “public emergency”, as defined in section 5 of the Factories Act, and that the Union Territory of Pondicherry resorts to the use of section 5 on a regular basis in order to grant exemptions under section 66 of the Factories Act 1948. The Committee is obliged to observe, in this connection, that Article 5 of the Convention requires prior consultations with the employers’ and workers’ organizations concerned, and most importantly refers to a compelling national interest in case of serious emergency, such as in time of war. Noting that under the Factories Act, the term “public emergency” is meant to cover situations where the security of India is threatened whether by war or external aggression or internal disturbance, the Committee asks the Government to provide additional explanations on the use made of this exceptional provision, especially on the circumstances which would possibly justify the regular recourse to the “public emergency” clause by the southern Union Territory of Pondicherry.

Article 3 of the Protocol and Parts IV and V of the report form. Practical application. With further reference to recent court decisions which upheld that the prohibition against the employment of women during the night was unconstitutional, the Committee would appreciate receiving up to date information on any further developments, including new judgements, relevant reports of tripartite consultative bodies, studies published by women’s organizations or other interest groups, etc.

In addition, the Committee notes the comments made by the Bharatiya Mazdoor Sangh (BMS). According to the workers’ organization, the situation of women night workers should be looked with caution in the light of national circumstances where women have a greater role to play in family, workers have to travel long distances to their workplace, and workplace protection against sexual harassment is weak. The BMS considers that the Convention must be strictly enforced and refers to recent judgements of various courts that have amplified controversy over the issue of night work. The Committee requests the Government to transmit together with its next report any comments it may wish to make with regard to the observations of the BMS.

Finally, the Committee notes that the Government remains bound by the provisions of the Night Work (Women) Convention, 1919 (No. 4), and therefore action also needs to be taken in this regard. In its General Survey of 2001 on the night work of women in industry, the Committee concluded that Convention No. 4 was a rigid instrument, ill-suited to present-day realities and manifestly of historical importance only (paragraph 193). Similarly, the ILO Governing Body, based on the recommendations of the Working Party on Policy regarding the Revision of Standards, decided to retain Convention No. 4 as a candidate for possible abrogation considering that it no longer corresponded to current needs and had become obsolete (see GB.283/LILS/WP/PRS/1/2, paragraphs 31–32 and 38). The Committee takes this opportunity to recall that contrary to most other Conventions which may be denounced after an initial period of five or ten years but only during an interval of one year, the denunciation of Convention No. 4 is possible at any time provided that the representative organizations of employers and workers are fully consulted in advance. The Committee therefore strongly encourages the Government to take appropriate action in respect of obsolete Convention No. 4.