Direct Request (CEACR) - adopted 2011, published 101st ILC session (2012)

Night Work (Women) Convention (Revised), 1948 (No. 89) - Madagascar (Ratification: 2008)

Article 3 of the Convention, in conjunction with Article 1 of the Protocol. Exemptions from the prohibition of night work for women. The Committee notes that section 85 of the Labour Code states that women without distinction of age shall not be employed during the night in any public or private industrial undertaking, whether lay or religious, or in any branch thereof, even where these are concerned with vocational training or welfare, other than an undertaking in which only members of the same family are employed. It also notes that section 5.6 of Act No. 2007-037 of 14 January 2008 concerning export processing zones (EPZs) in Madagascar states that the provisions of the Labour Code concerning night work for women, particularly section 85 of the Labour Code or any other legislative or regulatory provision which might replace it, is not applicable to EPZs. It recalls that the 1990 Protocol to Convention No. 89 permits a more flexible application of the Convention while still focusing on the protection of women workers. The Protocol allows a smooth transition from a situation involving an outright ban on night work, particularly for countries that wish to make it possible for women workers to work at night but consider that some institutional protection must remain in place to avoid exploitative practices or any sudden deterioration in conditions of work for women. In addition, the Committee wishes to recall that the provisions of the Protocol lay down precise conditions for introducing either variations in the duration of the night period or exemptions from the prohibition of night work. However, these provisions do not appear to have been transposed into national law. Specifically, the Committee notes that the Government’s report does not indicate whether, with regard to lifting the ban on night work for women in the EPZs, an agreement has been concluded with the representative organizations of employers and workers or whether these organizations have given their agreement, in accordance with Article 1 of the Protocol. The Committee therefore requests the Government to take the necessary steps to bring its legislation into conformity with the provisions of the Convention, as amended by the 1990 Protocol.

Article 8. Exceptions to the prohibition of night work for women. The Committee notes that, according to the Government’s indications, women occupying managerial posts or technical posts involving responsibility, and also women employed in health services, especially in hospitals, are not subject to the prohibition of night work. However, it notes that the report does not refer to any legal basis in this regard and that this category of employees does not appear on the list of exceptions established by section 83 of the labour Code. The Committee therefore requests the Government to clarify this point in its next report.

Article 2 of the Protocol. Maternity protection. The Committee notes that section 85 of the Labour Code prohibits the employment during the night of women medically certified as pregnant to be employed up to eight weeks following child birth. However, under section 5.6 of Act 2007-07, section 85 does not apply to women workers in EPZs. The Committee therefore requests the Government to indicate the manner in which it is ensured that women workers in EPZs are covered by: (i) the prohibition of night work during a period before and after child birth of at least 16 weeks; (ii) the prohibition of night work for additional periods during pregnancy or during a specified time prolonging the period after child birth; and (iii) protection against dismissal and maintenance of income at a level sufficient for the upkeep of herself and her child in accordance with a suitable standard of living during these periods.

Part V of the report form. Application in practice. The Committee requests the Government to supply all available information concerning the application of the Convention in practice, including, for example, extracts from the reports of the inspection services, statistics concerning the number of workers covered by the legislation, the number and nature of the infringements reported, the application of the exceptions allowed under Article 4 of the Convention.

Finally, the Committee again wishes to take this opportunity to remind the Government that the ratification of Convention No. 89 entails the immediate denunciation of Convention No. 41, but does not have the same legal effect with regard to Convention No. 4, which must be denounced separately (Convention No. 4 may be denounced at any time, provided that the representative organizations of employers and workers concerned have been fully consulted beforehand). The Committee hopes that the Government will make appropriate arrangements with regard to Convention No. 4, which is now obsolete, in the very near future and will keep the Office informed in this regard.