Direct Request (CEACR) - adopted 2004, published 93rd ILC session (2005)

Underground Work (Women) Convention, 1935 (No. 45) - Mexico (Ratification: 1938)

The Committee notes the information supplied by the Government in its report and attached documentation, in particular the adoption of the new Regulations to the Mine Act, which were published in the Official Gazette on 15 February 1999, and the Official Mexican Standard NOM-023-STPS-2003 concerning conditions of safety and health in mine works, which was published in the Official Gazette on 2 October 2003.

The Committee notes that according to the latest National Employment Survey, in 2003, there were 3,183 women in the sector of exploitation of mines and quarries, principally holding managerial and administrative positions or employed in nursing services. The Government adds that, in 2003, labour inspection visits were conducted in 118 mines employing 23,000 workers, including 1,070 female workers none of which was found to perform underground work. At the legislative level, however, the Committee notes that the Federal Labour Law, as amended, no longer contains a provision explicitly prohibiting the employment of women on underground work in mines, while the scope of all protective provisions against dangerous or unhealthy work is now limited to pregnant workers and breastfeeding mothers. Accordingly, under paragraphs 5.21 and 6.11 of the abovementioned Official Mexican Standard, the prohibition of employment on underground work in mines or quarries applies only to minors under 16 years of age and pregnant women.

The Committee takes this opportunity to recall that, based on the conclusions and proposals of the Working Party on Policy regarding the Revision of Standards, the ILO Governing Body has decided to invite the States parties to Convention No. 45 to ratify the Safety and Health in Mines Convention, 1995 (No. 176), and possibly denounce Convention No. 45 although this instrument has not been formally revised (see GB.283/LILS/WP/PRS/1/2, paragraph 13). Contrary to the old approach based on the outright prohibition of underground work for all female workers, modern standards focus on risk assessment and risk management and provide for sufficient preventive and protective measures for mineworkers, irrespective of gender, whether employed in surface or underground sites. As the Committee has noted in its 2001 General Survey on night work of women in industry in relation to Conventions Nos. 4, 41 and 89, "the question of devising measures that aim at protecting women generally because of their gender (as distinct from those aimed at protecting women’s reproductive and infant nursing roles) has always been and continues to be controversial" (paragraph 186).

In the light of the foregoing observations, and also considering that the general trend worldwide is to provide protection for women in a fashion that does not infringe their rights to equality of opportunity and treatment, the Committee invites the Government to contemplate ratifying the Safety and Health in Mines Convention, 1995 (No. 176), which shifts the emphasis from a specific category of workers to the safety and health protection of all mineworkers, and also consider the possibility of denouncing Convention No. 45. In this respect, the Committee recalls that according to established practice the Convention will be next open to denunciation during a one-year period from 30 May 2007 to 30 May 2008. The Committee requests the Government to keep the Office informed of any decision taken in this regard.