Night Work (Women) Convention (Revised), 1948 (No. 89) - Kuwait (RATIFICATION: 1961)

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Article 3 of the Convention. General prohibition of night work for women. The Committee notes the adoption of Act No. 6 of 2010 concerning the Labour Law in the Private Sector, section 22 of which continues to give effect to the Convention by prohibiting the employment of women between 10 p.m. and 7 a.m. While noting that the duration of the compulsory night rest for women has been shortened from 11 to nine hours, the Committee wishes to draw the Government's attention once again to the current trend favouring the review of gender-specific protective legislation with a view to gradually eliminating all provisions contrary to the principle of gender equality and non-discrimination taking due account of national circumstances. This trend reflects also the growing expectation that the same standards of protection should apply to men and women alike in accordance with the Discrimination (Employment and Occupation) Convention, 1958 (No. 111), and also the widely ratified UN Convention on the Elimination of All Forms of Discrimination against Women. The Committee accordingly hopes that the Government will give favourable consideration to the ratification of the Night Work Convention, 1990 (No. 171), which is not devised as a gender-specific instrument but focuses on the protection of all night workers in all branches and occupations. Noting the Government's statement that it is currently examining the possible ratification of Convention No. 171, the Committee requests the Government to keep the Office informed of any decision taken in this regard.

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Article 3 of the Convention. General prohibition of night work for women. The Committee notes the Government’s reference to the adoption of Act No. 25 of 2007, amending the Labour Law in the Private Sector No. 38 of 1964. The Committee understands that under the new legislation, women are prohibited from working in any job between 8 p.m. and 7 a.m., with the exception of women working in the medical profession. It also understands that contrary to section 31 of Labour Law No. 38 of 1964, which empowered the Minister to grant exceptions to establishments other than health services, the new legislation no longer provides for such possibility. As the text of the new Act is not available to the Office, the Committee requests the Government to transmit a copy.

While noting that the Labour Law, as amended, seeks to strengthen the general ban on women’s night work, the Committee wishes to draw once more the Government’s attention to the fact that general protective measures for women workers, such as blanket prohibitions or restrictions – as contrasted to special measures aimed at protecting women’s reproductive and maternal capacity – are increasingly subjected to extensive criticism as obsolete and unnecessary infringements of the fundamental principle of equality of opportunity and treatment between men and women. The Committee is fully aware, however, that the specific needs of each country vary and that the universal acceptance of non-discrimination in employment and occupation as a fundamental human right may in some situations call for a phased approach. It is in this sense that the Committee concluded in paragraph 201 of its General Survey of 2001 on the night work of women in industry that “Convention No. 89, as revised by the 1990 Protocol, retains its relevance for some countries as a means of protecting those women who need protection from the harmful effects and risks of night work in certain industries, while acknowledging the need for flexible and consensual solutions to specific problems and for consistency with modern thinking and principles on maternity protection”. In light of these observations, the Committee invites the Government in consultation with the social partners, and in particular with women workers, to consider the possibility of modernizing its legislation by ratifying either the 1990 Protocol to Convention No. 89, which opens up the possibility for women to work at night under certain well-specified conditions, or the Night Work Convention, 1990 (No. 171), which applies to all night workers in all branches and occupations. The Committee recalls that the Government may wish to seek the assistance of the Office with a view to better understanding the possibilities and implications of each of these two instruments and revising existing legislation accordingly. It requests the Government to keep the Office informed of any decision taken or envisaged in this regard.

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The Committee notes the information provided in the Government’s report and the attached documentation.

The Committee takes this opportunity to refer to paragraphs 191-202 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 blanket prohibition against women’s night work and to give the social partners the responsibility for determining the extent of the permitted exemptions. 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 United Nations Convention on the Elimination of All Forms of Discrimination against Women (to which parenthetically Kuwait acceded in 1994), 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. It also suggested that 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 the new Night Work Convention, 1990 (No. 171), to realize the advantages of modernizing their legislation in line with the provisions of the Protocol. Therefore, the Committee once again invites the Government to give favourable consideration to the ratification of the 1990 Protocol which affords greater flexibility in the application of the Convention while remaining focused on the protection of female workers. 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 workers covered by relevant legislation, the application of the exceptions allowed under the provisions of the Convention, etc.

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The Committee notes the information provided in the Government’s reports.

Following up on its previous comments concerning the need to extend the application of the Convention to certain categories of workers who are excluded from the Labour Law in the Private Sector, No. 38 of 1964 (i.e. workers in enterprises operating without recourse to power and employing less than five people, and casual and temporary workers engaged for less than six months), the Committee regrets that no progress is made and that the Bill to amend Law No. 38 of 1964 has yet to be formally adopted.

Bearing in mind that the Committee has been drawing attention to this point for more than 25 years, the Committee expresses the hope that measures will be taken without further delay to eliminate the divergences between the national legislation and the provisions of the Convention.

The Committee also wishes to draw the Government’s attention to the Protocol of 1990 to Convention No. 89, which offers greater flexibility in the application of this Convention.

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The Committee notes the information supplied by the Government in its report.

Article 1, paragraph 1 of the Convention. In the comments it has been making for many years, the Committee has pointed out the need to extend the application of the Convention to certain categories of workers who are excluded from the Labour Law (private sector) of 1994 (i.e. workers in enterprises operating without recourse to power and employing less than five people, and casual and temporary workers engaged for less than six months). It noted that the Bill to amend Law No. 38 of 1964 which is currently in force, is intended to include the categories of workers excluded from the above Law. The Committee notes the Government's statement that it will provide a copy of the Labour Code for the private sector as soon as it has been adopted officially. It hopes that the necessary amendments will be made to the Labour Code (private sector) to give effect to the provisions of the Convention.

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The Committee notes the information supplied by the Government in its report.

Article 1, paragraph 1, of the Convention. In the comments which it has been making for many years, the Committee has pointed out the need to extend the scope of the Convention to certain categories of workers not covered by the Labour Law (Private Sector) of 1964 (that is, workers in enterprises operating without recourse to power and employing less than five persons, and casual and temporary workers engaged for periods of less than six months). It noted that the Bill to amend Law No. 38 of 1964, which is currently in force, is intended to include the categories of workers which are excluded from the above Law. The Committee notes from the Government's report that the Government will supply a copy of the Labour Code for the private sector as soon as it is adopted. The Committee hopes that the necessary changes will be made to the Labour Code for the private sector to give effect to the provisions of the Convention.

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Article 1, paragraph 1, of the Convention. The Committee refers to its previous comments in which it pointed out the need to extend the scope of the Convention to certain categories of workers not covered by the Labour Act (private sector) of 1964 (i.e., workers in enterprises operating without recourse to power and employing less than five persons, and casual and temporary workers engaged for periods of less than six months). It notes the Government's statement in its report that the Bill to amend Act No. 38 of 1964 currently in force, will include the categories of workers hitherto excluded. The Committee therefore hopes that the necessary amendments will be made to ensure that the new Act gives effect to the provisions of the Convention in this respect and asks the Government to provide a copy of it as soon as it has been adopted.

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Article 1, paragraph 1, of the Convention. The Committee again refers to its previous comments in which it pointed out the need to extend the application of the Convention to certain categories of workers not covered by the Labour Act (Private Sector) of 1964 (i.e., workers in enterprises operating without recourse to power and employing less than five persons, and casual and temporary workers engaged for periods of less than six months). In its previous reports, the Government referred to a revised draft of the Labour Code which cancelled the exceptions envisaged in the Act of 1964. The Committee would be grateful if the Government would indicate whether it is still planned to adopt the new Code or to take other measures to give effect to the provisions of the Convention, and to indicate any progress made in this respect.

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The Committee notes 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:

Article 1, paragraph 1, of the Convention. The Committee refers to its previous comments in which it points out the need to extend application of the Convention to certain categories of worker not covered by the Labour Act (Private Sector) of 1964 (i.e. to workers in enterprises operating without recourse to power and employing less than five persons, and to occasional and temporary workers engaged for periods of less than six months). It notes with interest that according to the last report the revised draft of the Labour Code cancels the exceptions envisaged in the Act of 1964. The Committee hopes that the new Code will be adopted soon and requests the Government to report all progress achieved in this respect.

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The Committee notes 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:

Article 1, paragraph 1, of the Convention. The Committee refers to its previous comments in which it points out the need to extend application of the Convention to certain categories of worker not covered by the Labour Act (Private Sector) of 1964 (i.e. to workers in enterprises operating without recourse to power and employing less than five persons, and to occasional and temporary workers engaged for periods of less than six months). It notes with interest that according to the last report the revised draft of the Labour Code cancels the exceptions envisaged in the Act of 1964. The Committee hopes that the new Code will be adopted soon and requests the Government to report all progress achieved in this respect.