Night Work (Women) Convention (Revised), 1948 (No. 89) - India (RATIFICATION: 1950)

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Articles 1(1)(1)(a), and 2(1) of the Protocol. Exemptions from prohibition and variations in the night period – Maternity protection. The Committee recalls its previous comments in which it noted that, despite having ratified the 1990 Protocol to Convention No. 89 in 2003, the Government has still not adopted the necessary legislative changes to implement its provisions, in particular the requirement for an 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, and the prohibition 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. In its latest report, the Government refers to a revised draft text of the proposed amendment to section 66 of the Factories Act, 1948, which is in line with the above requirements as it incorporates the need to obtain the consent of women workers and the representative employers’ and workers’ organizations before allowing the employment of women during the night and also excludes any such permission to be granted to women during a period of 16 weeks before and after childbirth of which at least eight weeks shall be before the expected childbirth. Recalling that the Government has been reporting since 2008 that the necessary amendment is pending consideration in Parliament, the Committee hopes that the proposed amendment to section 66 of the Factories Act, 1948, will be adopted in the very near future in order to bring the national legislation into full conformity with the requirements of the Protocol. In addition, the Committee once again invites the Government to take appropriate steps to proceed to the denunciation of the obsolete Night Work (Women) Convention, 1919 (No. 4).

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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.

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The Committee takes note of the information supplied by the Government in response to its previous observation. It also notes the comments of the Centre of Indian Trade Unions (CITU), dated 24 August 2005, on the application of the Convention.

Article 1, paragraph 1(a), of the Protocol. The Committee notes that according to the terms of the proposed amendment to section 66 of the Factories Act, 1948, the employment of women workers between 7 p.m. and 6 a.m. is to be allowed provided that adequate safeguards are made by the occupier of the factory as regards occupational health and safety, equal opportunity for women workers, adequate protection of their dignity, honour and safety and their transportation from the factory premises to the nearest point of their residence. The revised text also provides for prior consultations with the concerned employer, or employers’ organization, and workers, or workers’ representative organizations. The Committee recalls, in this respect, that under Article 1(1)(a) of the Protocol, exemptions from the prohibition of night work or variations in the duration of the night period in a specific branch of activity or occupation may be permitted only if the representative organizations of the employers and workers concerned have concluded an agreement to this effect or have given their agreement. The Committee draws therefore the Government’s attention to the need to modify the draft amendment, which requires mere consultation with the concerned employers and workers, in order to ensure full conformity with the provisions of the Protocol.

In this connection, the Committee notes the comments made by the CITU according to which the proposed amendment does not require any specific agreement between the employers and employees, its provisions on transportation are vague while the responsibility does not lie with the employer but with the occupier of the factory. The CITU argues that the amendment is not based on any proper study of the current situation, concerns or needs of women workers. It also denounces existing practices whereby even pregnant and breastfeeding women are threatened and forced to work at night despite the ban on women’s night work in force. 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 CITU.

Article 2, paragraph 1. The Committee notes the Government’s indication that under section 5 of the Maternity Benefit Act, 1961, a woman is entitled to the payment of maternity benefit at the rate of the average daily wage for a maximum period of 12 weeks of which not more than six weeks must precede the date of her expected delivery. The Committee also notes the Government’s statement that there is no explicit provision under the proposed amendment to the Factories Act prohibiting the employment of women factory workers during the night period before and after childbirth for at least 16 weeks, as required under this Article of the Protocol. The Committee therefore requests the Government to indicate the measures taken or envisaged in order to give full effect to the requirements of the Protocol in this regard.

Article 3 and Parts IV and V of the report form. The Committee notes the information provided by the Government concerning the decision of the Madras High Court of December 2000 by which the prohibition of night work for women was declared unconstitutional and discriminatory and which eventually led the Government to introduce in July 2003 a Bill to amend section 66 of the Factories Act. It also notes the brief account on the views expressed by trade unions, women’s organizations and other interested groups during the examination of this Bill by the Standing Committee on Labour and Welfare of the National Parliament in October 2003. Moreover, the Committee notes the statistical information supplied by the Government concerning the number of women workers employed in the various states and the exemptions which have been granted to certain textile/spinning industries and food industries permitting the employment of women up to 10 p.m. The Committee would be grateful if the Government would continue to provide up-to-date information concerning the application of the Convention and its Protocol in practice, especially once the amendment to the Factories Act is formally enacted and takes effect.

Finally, the Committee notes the Government’s statement to the effect that the ratification of the Night Work Convention, 1990 (No. 171), might be considered once the relevant laws and regulations are brought into conformity with the requirements of that Convention. The Committee once again invites the Government to make its best effort to give favourable consideration to the ratification of Convention No. 171, which, contrary to Convention No. 89, no longer follows a gender-oriented perspective but addresses the issue of night work for both men and women in its occupational safety and health dimension. The Committee asks the Government to keep it informed of any further developments in this regard.

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The Committee notes with interest the information contained in the Government’s report, in particular the ratification of the Protocol of 1990 to the Night Work (Women) Convention (Revised), 1948 (No. 89). The Committee notes the Government’s statement that, in the light of changed circumstances and demands from various women’s organizations and also in view of the Protocol of 1990, it has decided to amend section 66 of the Factories Act, 1948, in order to ensure greater flexibility in the application of the Convention while maintaining adequate safeguards. Recalling that according to Article 1 of the Protocol, exemptions from the prohibition on women’s night work and variations in the duration of the night period may be introduced by decision of the competent authority provided that the employers and workers concerned or their representatives have concluded an agreement to this effect at the branch or enterprise level, the Committee requests the Government to specify in its next report the legislative provisions giving effect to the requirements of the Protocol and to transmit a copy of the amended text of section 66 of the Factories Act, 1948. Moreover, the Committee wishes to draw the Government’s attention to Article 2, paragraphs 1 and 3, of the Protocol which lay down the principle that, even though the prohibition on the night work of women may in practice be lifted in specific branches of activity and occupations or specific establishments, minimum protection is still needed for pregnant women workers and nursing mothers and therefore an outright prohibition on night work should continue to apply at least during the eight weeks preceding childbirth and the eight weeks following it, whereas appropriate measures should be taken to ensure the income maintenance and the protection of female employees against unfair dismissal during the period of compulsory absence from work on maternity grounds. The Committee accordingly requests the Government to indicate the measures taken or envisaged to ensure that national legislation is fully consonant with the above provisions. Moreover, the Committee would be grateful to the Government for providing in its next report, in accordance with Part V of the report form and Article 3 of the Protocol, all available 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, information on the variations and exemptions introduced pursuant to the Protocol, etc. Finally, the Committee invites the Government to give favourable consideration to the ratification of 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.

[The Government is asked to reply in detail to the present comments in 2005.]

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Further to its previous comments, the Committee notes the Government's report and the observations by the National Front of Indian Trade Unions (NFITU) and the Centre of Indian Trade Unions (CITU) submitted with the report.

In its previous observations, the Committee has been commenting on the discrepancy between the exemptions to the prohibition of night work of women under section 66 of the Factories Act, 1948, and the requirements under Article 5 of the Convention. It recalls that, under Article 5 of the Convention, the prohibition of night work for women may be suspended only when, in case of serious emergency, the national interest demands it and after consultation with the employers' and workers' organizations concerned.

In reply, the Government states that it is aware that the Factory Act, 1948, is not fully in conformity with Article 5 of the Convention, but that there is no proposal to amend the Factories Act at the moment. The Government refers to the judgements of the High Courts of Bombay and Madras, which restrain the Government from taking any action against employers for permitting any willing woman employee to work in their factories during night hours. The report indicates that the Government is yet to make a final decision as to whether the Convention should be denounced or the Protocol of 1990 to the Night Work (Women) Convention (Revised), 1948, should be ratified.

The Committee takes due note of the above information. It also notes that the NFITU points out the absence of implementation of the Convention in the unorganized sector, and that the CITU is opposing the Government's attempt to change the existing legislation which restricts the night work of women. The CITU argues that the reasons for the restriction (such as family responsibilities, health concern and security issues) not only continue to exist but have intensified in the impact, and underlines that the demand for women's night work comes especially in the export processing zones.

The Committee asks the Government to indicate any development in the abovementioned consideration of its position as to this Convention, including its observation on the points raised by the CITU. It also requests the Government in the meantime to continue providing information on the application of the Convention in practice, with particular reference to the unorganized sector mentioned by the NFITU. In addition, the Committee requests the Government to fully consult the employers' and workers' organizations before taking a final decision as to whether the Convention should be denounced or the Protocol should be ratified.

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In its previous comments, the Committee has been commenting on the exemptions made to the prohibition of night work of women under section 66 of the Factories Act, 1948. It notes the Government has supplied further information regarding exemptions granted to factories of various sectors in different states.

The Committee also notes the Government's statement in the report that these exemptions are in conformity with the the Protocol of 1990 to the Night Work (Women) Convention (Revised), 1948 (No. 89). It points out that the Protocol of 1990 has not so far been ratified by India, and that the Government therefore has the obligation to ensure the application of the provisions of the Convention and not the Protocol, as long as the latter has not been ratified.

The Committee recalls once again that under Article 5 of the Convention, the prohibition of night work for women may be suspended only when, in case of serious emergency, the national interest demands it and after consultation with the employers' and workers' organizations concerned. It asks the Government to provide information on the measures which have been taken to bring practice into conformity with national laws and the international commitments which have been undertaken.

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With reference to its previous comments, the Committee notes the Government's reply to the comments made by the Centre of India Trade Unions (CITU) in which the Government indicates that, in conformity with Article 2 of the Convention, section 66 of the Factories Act 1948 does not authorize the employment of women beyond ten o'clock in the evening. It also notes that the employment of women in night shifts at the hosiery units in Tirupur (Tamil Nadu) has been considered and that the State Government of Tamil Nadu has indicated that in no factory have women workers been employed beyond 10 p.m. It notes further that, in 1994, 17 clothing factories in Tirupur were granted permission to employ women workers up to 10 p.m. Furthermore, the State Governments of Goa, Madhya Pradesh, Orissa, Assam, Gujarat and Kerala have by specific notifications authorized the employment of women between 7 p.m. only and 10 p.m. in a few units, subject to certain conditions, e.g. transportation, security, food for women workers, etc. The Government states also that, under section 66 of the same Factories Act, night work for women has also been allowed up to 10 p.m. in the States of Madhya Pradesh (in the ginning factories and Hotline Tele-tube and Components Ltd., Malanpur, for a period of three years); Goa (for the fish processing unit and the textile unit); Orissa in Ipitron Time Ltd., Mancheswar Industrial Estate, Bhubaneshwar and Kalinga Iron Works, Distt. Keonjhar and Tripura (work in fish curing or fish canning factories). The Committee notes these indications and considers that the number of exemptions and the number of States involved are both on the increase.

The Committee recalls once again that under Article 5 of the Convention, the prohibition of night work for women may be suspended only when, in case of serious emergency, the national interest demands it and after consultation with the employers' and workers' organizations concerned. The Committee recalls the adoption by the International Labour Conference of the Protocol of 1990 to the Night Work (Women) Convention (Revised), 1948 (No. 89), in order to allow greater flexibility. It asks the Government to provide information on the measures which have been taken to bring practice into conformity with national laws and the international commitments which have been undertaken.

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The Committee notes the information and the comments made by the Centre of India Trade Unions (CITU) supplied by the Government in its report.

Article 5 of the Convention. In its previous comments, the Committee had noted from the Government's reply to earlier comments that the Government of Pondichery has from time to time authorized exemptions from prohibition on night work in three textile factories, by virtue of section 5 of the Factories Act of 1948.

The Committee notes the Government's increased efforts to comply with the provisions of the Factories Act, 1948 under which women workers will not be employed in the night shift and no exemption will be granted after 26 October 1993, when the last exemption order expires. From information supplied in the report of the Government by CITU, the Committee also notes that the night shifts for women are very rare because the employment of women is dwindling. However, in Tirupur (Tamil Nadu) women are employed in clothing industries during the night shifts. The Committee further recalls that under Article 5 of the Convention, the prohibition of night work for women may be suspended only when, in case of serious emergency, the national interest demands it, and, after consultation with the employers' and workers' organizations concerned. The Committee therefore continues to ask the Government to provide information in its future reports on 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 following matters raised in its previous direct request:

Article 5 of the Convention. The Committee noted from the Government's last report that the Government of Pondichery has from time to time authorized exemptions from the prohibition on night work in three textile factories, by virtue of section 5 of the Factories Act of 1948.

The Committee asked the Government to state in what circumstances these exemptions were granted and to indicate the employers' and workers' organizations that were consulted. It recalled that under Article 5 of the Convention, the prohibition of night work for women may be suspended only when, in case of serious emergency, the national interest demands it, and after consultation with the employers' and workers' organizations concerned. It requested the Government to provide information on any other cases where exemptions from the prohibition of night work for women may have been authorized.

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Article 5 of the Convention. The Committee notes from the Government's last report that the Government of Pondichery has from time to time authorised exemptions from the prohibition on night work in three textile factories, by virtue of section 5 of the Factories Act of 1948.

The Committee asks the Government to state in what circumstances these exemptions were granted and to indicate the employers' and workers' organisations that were consulted. It recalls that under Article 5 of the Convention, the prohibition of night work for women may be suspended only when, in case of serious emergency, the national interest demands it, and after consultation with the employers' and workers' organisations concerned. It requests the Government to provide information it its future reports, on any other cases where exemptions from the prohibition of night work for women may have been authorised.