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

Night Work of Young Persons (Industry) Convention (Revised), 1948 (No. 90) - India (Ratification: 1950)

Articles 2(1) and 3(1) of the Convention. Period during which night work is prohibited for persons under 18 years. In the comments it has been making for many years, the Committee has pointed out that section 70(1A) of the Factories Act, 1948 as amended in 1987, prohibits the night work of adolescents under 17 years of age between 7 p.m. and 6 a.m., that is for a period of 11 consecutive hours, which is inconsistent with Article 2(1) of the Convention.

The Committee notes the Government’s statement that in India, night work generally refers to working hours between 7 p.m and 6 a.m. It further states that the proposed amendment to section 70(1A) of the Factories Act is still under the consideration of the Government. The Committee notes that according to section 71(b) of the Factories Act, no child (who has not completed 15 years) shall be employed or permitted to work in any factory during the night. For the purposes of this section “night” shall mean a period of at least 12 consecutive hours including the interval between 10 p.m. and 6 a.m. It further notes section 70(2) of the Factories Act which states that an adolescent (person who has completed 15 years but not yet completed 18 years) who has not been granted a certificate of fitness to work as an adult shall be deemed to be a child for all the purposes of this Act. The Committee therefore observes that the period of night work of 12 consecutive hours is prohibited only to children under 15 years of age and does not cover adolescents under 18 years of age. The Committee recalls that Article 2(1) of the Convention, which defines the term “night” as a period of at least 12 consecutive hours read in conjunction with Article 3(1) of the Convention applies to both children and adolescents under the age of 18 years, irrespective of whether they hold a certificate of fitness to work as an adult or not. Noting with regret that, despite the request which it has repeatedly made for several years, no measures have been taken to give effect to the Convention on this point, the Committee urges the Government to take the necessary measures without delay to ensure that the Factories Act is amended in line with Articles 2(1) and 3(1) of the Convention.

Articles 3(2), 4(2) and 5. Exceptions to night work in case of apprenticeships or vocational training, in case of emergencies, and where the public interest demands it. The Committee had in its previous comments noted that according to section 70(1A) of the Factories Act, the state governments may vary the prescribed time limits and authorize exceptions in case of emergency where the national interest so demands. The Committee notes the Government’s statement that no provision in the Factories Act provides for exceptions to night work for the purpose of apprenticeship or vocational training. It also notes the Government’s indication that as per section 5 of the Factories Act, in case of a public emergency the state government may exempt any factory or class or description of factories from all or any of the provisions of this Act, except section 67 on the prohibition of employment of children under 14 years. The Government further states that no such exemption was granted in any of the states so far.