Demande directe (CEACR) - adoptée 2009, publiée 99ème session CIT (2010)

Articles 2 and 3 of the Convention and Article 1 of the Protocol. Exemptions from the prohibition of night work of women. The Committee notes that Convention No. 89 and its 1990 Protocol entered into force for Madagascar on 10 November 2009. Pending the submission of the first detailed report on the application of the Convention and its Protocol, the Committee has been in receipt of the Government’s comments in response to observations made by the Conference of Madagascar Workers in relation to the Night Work (Women) Convention (Revised), 1934 (No. 41), which is no longer applicable to Madagascar following the ratification of Convention No. 89. The comments of the eight trade unions forming the Conference of Madagascar Workers related to section 5.6 of Act No. 2007-037 of 14 January 2008 on export processing zones (EPZs) and enterprises, which seeks to exclude workers in EPZs from the scope of application of the provisions of the Labour Code on women’s night work by providing that section 85 of the Labour Code, or any other legislative or regulatory provision which might replace it, is not applicable to EPZs. In its reply, the Government indicated that in the current economic context its principal objective was effectively to attract foreign investment by adapting the legislative framework and rendering it favourable to the promotion of productive investment. In this sense, it was felt that the prohibition of night work for women should be removed since it gave rise to certain forms of discrimination and no longer corresponded to the interests of the workers themselves. The Government further specified that according to a study undertaken within the framework of the project “Improvement of Productivity of Enterprises in Export Processing Zones through the Promotion of Decent Work” (APRODEF), the majority of women working in these enterprises are favourable to the possibility of being freely employed during the night.

In this connection, the Committee feels obliged to recall the 1990 Protocol to Convention No. 89 permits exemptions from the general prohibition of night work contained in Article 3 of the Convention, and variations in the duration of the night period as defined in Article 2 of the Convention, to be introduced in a specific branch of activity provided that the representative employers’ and workers’ organizations have concluded an agreement or have given their agreement. The Committee also wishes to draw the Government’s attention to the need for adequate safeguards as regards occupational safety and health, social services and equality of opportunity and treatment for women workers in the establishments employing women during the night, as prescribed by Article 1(1)(c) of the Protocol, as well as the need for laws or regulations determining the circumstances in which, and the conditions under which, such exemptions or variations may be permitted, as required by Article 1(2) of the Protocol. Noting that the Government’s report refers to the removal of the prohibition against the night work of women without specifying whether the most representative organizations of employers and workers have been duly consulted or whether a specific collective agreement has been concluded at the branch level covering all industries concerned in EPZs, the Committee requests the Government to clarify how it is given effect to the specific requirements of the Protocol both in law and practice. Moreover, the Committee notes
the Government’s indication that draft regulations on the application of Act No. 2007-037 on EPZs and enterprises have been submitted to the tripartite National Labour Council for examination. The Committee requests the Government to transmit a copy of these regulations once they have been finalized. It would also appreciate receiving practical information on the number of women workers engaged in night work and the type of enterprises concerned both within and outside EPZs.

Finally, the Committee wishes once gain to recall that the ratification of Convention No. 89 involves the immediate denunciation of Convention No. 41 but has no similar legal effect with regard to Convention No. 4 which has to be denounced separately (Convention No. 4 may be denounced at any time provided that the representative organizations of employers and workers are fully consulted in advance). The Committee hopes that that the Government will take appropriate action with respect to obsolete Convention No. 4 in the very near future and will keep the Office informed accordingly.