Night Work (Women) Convention (Revised), 1948 (No. 89) - Eswatini (Ratification: 1981)

Direct Request (CEACR) - adopted 2023, published 112nd ILC session (2024)

Previous comments: C.14, C.89 and C.101

In order to provide a comprehensive view of the issues relating to the application of the ratified Conventions on working time, the Committee considers it appropriate to examine Conventions Nos 14 (weekly rest (industry)), 89 (night work (women)) and 101 (holidays with pay in agriculture) together.

Weekly rest

Articles 4 and 5 of Convention No. 14. Total or partial exceptions.Compensatory rest. Following its previous comment, the Committee notes the Government’s reference to the draft Employment Bill, which has been forwarded to the office of the Attorney General for further drafting before it is taken forward to Cabinet for approval. The Committee notes that the draft Employment Bill, in section 56, provides for financial compensation or compensatory rest for an employee who works on Sunday. The Committee also notes that the Regulation of Wages Order revised in 2022 only provides for financial compensation for a worker performing work on Sunday. Furthermore, the Committee notes that according to section 54 of the draft Employment Bill overtime may be arranged by agreement. In this regard, the Committee draws the Government’s attention to the Convention’s requirement that total or partial exemptions to the weekly rest scheme be limited to those which have been previously authorised, in consultation with the social partners (Article 4). The Committee further recalls that Article 5 of the Convention requires workers who are deprived of their weekly rest to be granted compensatory rest in all cases, irrespective of any monetary compensation (See the Committee’s 2018 General Survey, Ensuring decent working time for the future, paragraph 252). The Committee requests the Government to take the necessary measures to ensure that full effect is given to Articles 4 and 5 of the Convention, including in the context of the adoption of the Employment Bill.

Night work

Article 2 of Convention No. 89. Night work of women. Following its previous comment, the Committee notes that section 57 of the draft Employment Bill lifts the general prohibition of night work by women and only restricts night work for pregnant women during a certain period. The Committee hopes that the draft Employment Bill will be adopted in the near future Recalling that Convention No. 89 will be open for denunciation between 27 February 2031 and 27 February 2032, the Committee also draws the Government’s attention to the Night Work Convention, 1990 (No. 171), which is not devised as a gender-specific instrument but focuses on the protection of all those working at night (2018 General Survey on Working Time, para. 408).

Holidays with pay

Article 5 of Convention No. 101. Regulation of holidays with pay in agriculture. Following its previous comment, the Committee notes that section 8(2) of the Regulation of Wages (Agricultural Industry) Order, 2022, provides for an increase in the duration of paid holidays with the length of service, in accordance with Article 5(b). However, the Committee notes once again that the legislation does not provide for special treatment for young workers in cases in which the annual holiday with pay granted to adult workers is not considered adequate for young workers (Article 5(a)); the granting of proportionate holiday to workers who have not completed the minimum period of service to qualify for full annual holiday with pay (Article 5(c)); and the exclusion of periods of sickness from the annual holiday with pay (Article 5(d)). Therefore, the Committee requests the Government to provide information on the measures taken in order to give effect to these provisions of the Convention, including in the context of the adoption of the Employment Bill.

Article 8. Prohibition of agreement to forego holiday. The Committee notes that section 67(2) of the draft Employment Bill allows an employee to waive not more than half of the annual leave in return for compensation. Referring to paragraph 374 of its 2018 General Survey, the Committee emphasizes the importance of workers effectively benefiting from their right to a period of relaxation and leisure every year. The Committee requests the Government to consider revising the provisions of the Employment Bill in order to ensure that paid annual leave rights are effectively enjoyed and that monetary compensation is offered in lieu of annual leave in the case of any unused leave upon termination of employment.

Direct Request (CEACR) - adopted 2013, published 103rd ILC session (2014)

Articles 2 and 3 of the Convention. Duration of compulsory night rest and exception possibilities. The Committee recalls its previous comments in which it noted that the provisions of the Employment Act of 1980 concerning the duration of the night period and the exemption possibilities to the general prohibition against women’s night work are not entirely consistent with the requirements of the Convention. The Committee accordingly invited the Government to consider the possibility of ratifying either the 1990 Protocol to Convention No. 89 or the Night Work Convention, 1990 (No. 171), which applies to all sectors of economic activity and to all workers irrespective of gender. In its last report, the Government indicates that the process of the amendment of the Employment Act is still ongoing.

Considering that the revision process is currently underway, the Committee wishes to recall that the present trend is clearly in favour of lifting all restrictions on women’s night work and formulating gender-sensitive night work regulations offering safety and health protection to both men and women. Noting 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 promoting gender equality, the Committee further recalls 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. The Committee accordingly encourages the Government to consider favourably the ratification of Convention No. 171 which sets out up-to-date standards applying to all night workers and to all occupations without distinction. The Committee requests the Government to review – in the ongoing revision process of the Employment Act – all restrictions concerning the employment of women during the night with due regard to the relevant provisions of Convention No. 171, and to keep the Office informed of any decision envisaged or taken with respect to the possible ratification of that instrument.

Direct Request (CEACR) - adopted 2008, published 98th ILC session (2009)

Articles 2 and 3 of the Convention. Duration of the night period and authorized exceptions. The Committee has been commenting on sections101(1) and (3) of the Employment Act of 1980, as amended, which provides for a significantly shorter night period than that prescribed by the Convention and also allows for broader exceptions to the prohibition of night work of women than those permitted under Articles 3, 4, 5 and 8 of the Convention. The Committee has also been drawing attention to the Protocol of 1990 to Convention No. 89, which expands considerably the exemption possibilities with regard to the prohibition of night work for women, and has been inviting the Government to give favourable consideration to its ratification. In its last report, the Government reiterates that there is an ongoing process of revision of the Employment Act of 1980 and that an Employment Bill has already been submitted to the Parliament. In the absence of any concrete indication as to whether the new draft legislation intends to ensure conformity with the Convention or to further relax the prohibition against women’s night work, the Committee once again invites the Government to consider the possibility of ratifying either the 1990 Protocol which affords greater flexibility in the application of Convention No. 89 while remaining focused on the protection of women workers, or Convention No. 171 which shifts the emphasis from a specific category of workers and sector of economic activity to the safety and health protection of all night workers irrespective of gender. The Committee asks the Government to keep the Office informed of any decision taken in this regard and to transmit the text of the new Employment Act once it is adopted.

Direct Request (CEACR) - adopted 2005, published 95th ILC session (2006)

The Committee notes the Government’s report which indicates that the Committee’s previous comments concerning the inconsistencies between the national legislation and the provisions of the Convention will be taken into consideration in the ongoing revision process of the Employment Act of 1980.

The Committee takes this opportunity to draw the Government’s attention to paragraphs 191 to 202 of the General Survey of 2001 on the night work of women in industry in which the Committee, referring to the present-day relevance of the ILO instruments on women’s night work, concluded that there can be no doubt that the current trend is clearly in favour of lifting all restrictions on women’s night work and formulating gender-sensitive night work regulations offering safety and health protection to both men and women. 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 UN Convention on the Elimination of All Forms of Discrimination against Women (to which parenthetically Swaziland became party in 2004), 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. On the other hand, the Night Work Convention, 1990 (No. 171) was drafted for those countries which would be prepared to abolish all women-specific restrictions on night work (except for those aimed at protecting women’s reproductive and infant nursing role) and offer appropriate protection to all night workers irrespective of gender and occupation. The Committee also suggested that, in addition to promoting the ratification of the new night work Convention, 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 Convention No. 171, to realize the advantages of modernizing their legislation in line with the provisions of the Protocol.

In the light of the foregoing observations, the Committee once again invites the Government to contemplate ratifying either Convention No. 171, which shifts the emphasis from a specific category of workers and sector of economic activity to the safety and health protection of all night workers, or the 1990 Protocol which affords considerable flexibility in the application of Convention No. 89 while remaining focused on the protection of female workers. The Committee asks the Government to keep the Office informed of any decision taken in this regard and trusts that the Government will give due consideration to the views summarized above in pursuing the revision of the Employment Act.

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 female workers covered by relevant legislation, the application of the exceptions allowed under the provisions of the Convention, etc.

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

The Committee notes with regret 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:

In its previous comments, the Committee noted that, under section 101(1) of the Employment Act, No. 5 of 1980, the prohibition of night work for women extends to a period of eight hours between 10 p.m. and 6 a.m., whereas according to Article 2 of the Convention the term "night" signifies a period of at least 11 consecutive hours. The Committee notes with regret that no progress was made in this respect despite the adoption of the Employment (Amendment) Act, No. 5 of 1997.

In addition, the Committee observes that, under section 101(1) and (3) of the Employment Act, the employment of women workers in industrial undertakings during the night may be authorized by the Labour Commissioner subject to certain conditions such as the existence of adequate means for the transport of employees, the availability of rest-room facilities and facilities for eating meals, or the provision for rest and meal breaks. This provision is not consistent with the Convention to the extent that the only exceptions permitted by the Convention to the general ban on women’s night work are those provided for in Articles 3, 4, 5 and 8 of the Convention.

The Committee notes the Government’s statement that there is an ongoing review of the Employment Act of 1980 which may consider the comments of the Committee, and hopes that the next report will contain information on the measures adopted to bring national legislation into conformity with the Convention.

The Committee takes this opportunity to invite the Government to give favourable consideration to the ratification of either the Night Work Convention, 1990 (No. 171) or the Protocol of 1990 to Convention No. 89.

Direct Request (CEACR) - adopted 2003, published 92nd ILC session (2004)

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:

In its previous comments, the Committee noted that, under section 101(1) of the Employment Act, No. 5 of 1980, the prohibition of night work for women extends to a period of eight hours between 10 p.m. and 6 a.m., whereas according to Article 2 of the Convention the term "night" signifies a period of at least 11 consecutive hours. The Committee notes with regret that no progress was made in this respect despite the adoption of the Employment (Amendment) Act, No. 5 of 1997.

In addition, the Committee observes that, under section 101(1) and (3) of the Employment Act, the employment of women workers in industrial undertakings during the night may be authorized by the Labour Commissioner subject to certain conditions such as the existence of adequate means for the transport of employees, the availability of rest-room facilities and facilities for eating meals, or the provision for rest and meal breaks. This provision is not consistent with the Convention to the extent that the only exceptions permitted by the Convention to the general ban on women’s night work are those provided for in Articles 3, 4, 5 and 8 of the Convention.

The Committee notes the Government’s statement that there is an ongoing review of the Employment Act of 1980 which may consider the comments of the Committee, and hopes that the next report will contain information on the measures adopted to bring national legislation into conformity with the Convention.

The Committee takes this opportunity to invite the Government to give favourable consideration to the ratification of either the Night Work Convention, 1990 (No. 171) or the Protocol of 1990 to Convention No. 89.

Direct Request (CEACR) - adopted 2000, published 89th ILC session (2001)

The Committee takes note of the Government’s report and the information supplied in answer to its previous comments.

In its previous comments, the Committee noted that, under section 101(1) of the Employment Act, No. 5 of 1980, the prohibition of night work for women extends to a period of eight hours between 10 p.m. and 6 a.m., whereas according to Article 2 of the Convention the term "night" signifies a period of at least 11 consecutive hours. The Committee notes with regret that no progress was made in this respect despite the adoption of the Employment (Amendment) Act, No. 5 of 1997.

In addition, the Committee observes that, under section 101(1) and (3) of the Employment Act, the employment of women workers in industrial undertakings during the night may be authorized by the Labour Commissioner subject to certain conditions such as the existence of adequate means for the transport of employees, the availability of rest-room facilities and facilities for eating meals, or the provision for rest and meal breaks. This provision is not consistent with the Convention to the extent that the only exceptions permitted by the Convention to the general ban on women’s night work are those provided for in Articles 3, 4, 5 and 8 of the Convention.

The Committee notes the Government’s statement that there is an ongoing review of the Employment Act of 1980 which may consider the comments of the Committee, and hopes that the next report will contain information on the measures adopted to bring national legislation into conformity with the Convention.

The Committee takes this opportunity to invite the Government to give favourable consideration to the ratification of either the Night Work Convention, 1990 (No. 171) or the Protocol of 1990 to Convention No. 89.

Direct Request (CEACR) - adopted 1999, published 88th ILC session (2000)

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:

In its previous comments, the Committee noted that no measure has been taken to prohibit the night work of women without distinction of age during a period of at least 11 consecutive hours, in accordance with the provisions of Articles 2 and 3 of the Convention.

The Committee noted the indication in the Government's report for 1995 that the Government has drafted and submitted a Bill on the Industrial Relations Act, 1995, to Parliament. This Bill has already been debated and approved with amendments by the House of Assembly. It is now on its way to the House of Senate. The comments made by the Committee of Experts from time to time have been taken into consideration when drafting this Bill. The Employment Act Amendment Bill, 1995, has already been drafted and is now awaiting to be discussed by the tripartite Committee (composed of employers, workers and government) before it is submitted to the competent authorities.

The Committee requests the Government to supply information on any progress achieved in the adoption of the Employment Act Amendment Bill, 1995, and to send a copy of this Act when adopted.

Direct Request (CEACR) - adopted 1997, published 86th ILC session (1998)

The Committee notes the information provided by the Government in its report which indicates that there has been no change in the application of the Convention.

In its previous comments, the Committee noted that no measure has been taken to prohibit the night work of women without distinction of age during a period of at least 11 consecutive hours, in accordance with the provisions of Articles 2 and 3 of the Convention.

The Committee noted the indication in the Government's report for 1995 that the Government has drafted and submitted a Bill on the Industrial Relations Act, 1995, to Parliament. This Bill has already been debated and approved with amendments by the House of Assembly. It is now on its way to the House of Senate. The comments made by the Committee of Experts from time to time have been taken into consideration when drafting this Bill. The Employment Act Amendment Bill, 1995, has already been drafted and is now awaiting to be discussed by the tripartite Committee (composed of employers, workers and government) before it is submitted to the competent authorities.

The Committee requests the Government to supply information on any progress achieved in the adoption of the Employment Act Amendment Bill, 1995, and to send a copy of this Act when adopted.

Direct Request (CEACR) - adopted 1994, published 81st ILC session (1994)

The Committee refers to its previous comments. It notes from the Government's report that no measure has been taken to prohibit the night work of women without distinction of age during a period of at least 11 consecutive hours, in accordance with the provisions of Articles 2 and 3 of the Convention. It requests the Government to report any progress achieved in this respect.

Direct Request (CEACR) - adopted 1991, published 78th ILC session (1991)

With reference to its previous comments, the Committee notes the information supplied by the Government in its report.

Articles 2 and 3 of the Convention. The Committee hopes that the necessary measures will be taken in the near future to prohibit the night work of women during a period of at least 11 consecutive hours, in accordance with the provisions of the Convention. Please report all progress achieved in this respect.

Direct Request (CEACR) - adopted 1990, published 77th ILC session (1990)

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:

Articles 2 and 3 of the Convention. (a) The Committee notes that the Government is still considering the amendment of the legislation in order to prohibit the night work of women during a period of at least 11 consecutive hours, in accordance with the provisions of the Convention. It hopes that the amendment will be adopted shortly and asks the Government to indicate any progress made in this connection.

(b) The Committee once again requests the Government to indicate the cases in which an employer may, under section 101(1) of the Employment Act, obtain authorisation to engage a woman between 10 p.m. of one day and 6 a.m. of the following day. It recalls that the only exceptions authorised in this respect are those contained in Articles 4 and 5 of the Convention.

Article 4(b). The Government is asked to provide information on the operations to which the exception provided for in section 101(4b) of the Act applies in practice, stating whether such an application is limited to certain regions or certain periods, as required in the report form on the Convention.