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

The Committee notes with regrets that the Government’s report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its previous direct request, which read as follows:

Articles 2 and 3 of the Convention. The Committee notes that, by virtue of articles 130 and 122 of Act No. 213 of 29 June 1993, establishing the Labour Code as amended by Act No. 496 of 22 August 1995, night work in industrial undertakings is only prohibited for pregnant and breastfeeding mothers as well as for minors between 15 and 18 years of age, while Article 3 of the Convention provides for a general ban on night work applicable to all women without distinction of age. In addition, the Committee notes that, under article 195 of the Labour Code, night work is defined as any work carried out between 8 p.m. and 6 a.m., that is a period of ten hours, whereas under Article 2 of the Convention the term "night" signifies a period of at least 11 consecutive hours including an interval of at least seven consecutive hours falling between 10 o’clock in the evening and 7 o’clock in the morning.

Articles 4 and 5 of the Convention. The Committee also notes that articles 208 and 209 of the Labour Code depart from the letter of the Convention in so far as they provide for the possibility of authorizing night work in cases other than those of force majeure, perishable materials and serious emergency. The Committee can only conclude, therefore, that the Convention has ceased to apply.

Furthermore, the Committee notes the Government’s statement that Article 3 of the Convention is self-executing and that therefore there is no need to include in national legislation a specific provision prohibiting night work for women. The Committee is obliged to recall, in this respect, that international labour Conventions are not self-executing, and that specific measures, legislative or others as the case may be, are required in order to give effect in law and ensure implementation in practice of those Conventions at the national level. Thus, until an express provision banning women’s night work is incorporated in internal law, Article 3 of the Convention may not be deemed to have been given effect.

The Committee recalls that the principal obligation for a government arising out of the ratification of an international labour Convention is to take such action as may be necessary to make effective the provisions of the ratified Convention, and to continue to ensure its application for as long as it does not decide to denounce it. Therefore, the Committee asks the Government to indicate the measures it intends to take to bring national legislation into conformity with the Convention.

The Committee takes this opportunity to invite the Government to give favourable consideration to the ratification of either the Night Work Convention, 1990 (No. 171) or the Protocol of 1990 to Convention No. 89.