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

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

Articles 2 and 3 of the Convention and Article 1 of the Protocol. Exemptions from the prohibition of night work for women. The Committee notes the comments of the General Confederation of Workers’ Unions of Madagascar (FISEMA) concerning the application of this Convention and of the Night Work Convention, 1990 (No. 171). According to the FISEMA, despite the ratification of Conventions Nos 89 and 171, no major modification has so far been introduced in the Labour Code or its implementing regulations concerning night work. The FISEMA indicates that in March 2013, a draft decree regulating night work was submitted to the National Labour Council for examination, but this text, in the FISEMA’s view, gives partial or no effect to several provisions of Convention No. 171, including the provisions on social services, first-aid facilities and the consultation of workers’ representatives. The FISEMA further adds that the draft decree empowers the Minister of Labour to authorize the night work of women in export processing zones, which could possibly carry a risk of abuse. The Committee requests the Government to transmit any comments it may wish to make in response to the observations of the FISEMA and to keep the Office informed of any progress made concerning the finalization of the decree on night work.

Moreover, the Committee wishes once again to recall that the ratification of Convention No. 89 involves the immediate denunciation of Convention No. 41 but has no similar legal effect with regard to Convention No. 4 which has to be denounced separately (Convention No. 4 may be denounced at any time provided that the representative organizations of employers and workers are fully consulted in advance). The Committee therefore requests the Government to take appropriate steps with respect to obsolete Convention No. 4 in the very near future and to keep the Office informed accordingly.

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

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.

Direct Request (CEACR) - adopted 2009, published 99th ILC session (2010)

Articles 2 and 3 of the Convention and Article 1 of the Protocol. Exemptions from the prohibition of night work of women. The Committee notes that Convention No. 89 and its 1990 Protocol entered into force for Madagascar on 10 November 2009. Pending the submission of the first detailed report on the application of the Convention and its Protocol, the Committee has been in receipt of the Government’s comments in response to observations made by the Conference of Madagascar Workers in relation to the Night Work (Women) Convention (Revised), 1934 (No. 41), which is no longer applicable to Madagascar following the ratification of Convention No. 89. The comments of the eight trade unions forming the Conference of Madagascar Workers related to section 5.6 of Act No. 2007-037 of 14 January 2008 on export processing zones (EPZs) and enterprises, which seeks to exclude workers in EPZs from the scope of application of the provisions of the Labour Code on women’s night work by providing that section 85 of the Labour Code, or any other legislative or regulatory provision which might replace it, is not applicable to EPZs. In its reply, the Government indicated that in the current economic context its principal objective was effectively to attract foreign investment by adapting the legislative framework and rendering it favourable to the promotion of productive investment. In this sense, it was felt that the prohibition of night work for women should be removed since it gave rise to certain forms of discrimination and no longer corresponded to the interests of the workers themselves. The Government further specified that according to a study undertaken within the framework of the project “Improvement of Productivity of Enterprises in Export Processing Zones through the Promotion of Decent Work” (APRODEF), the majority of women working in these enterprises are favourable to the possibility of being freely employed during the night.

In this connection, the Committee feels obliged to recall the 1990 Protocol to Convention No. 89 permits exemptions from the general prohibition of night work contained in Article 3 of the Convention, and variations in the duration of the night period as defined in Article 2 of the Convention, to be introduced in a specific branch of activity provided that the representative employers’ and workers’ organizations have concluded an agreement or have given their agreement. The Committee also wishes to draw the Government’s attention to the need for adequate safeguards as regards occupational safety and health, social services and equality of opportunity and treatment for women workers in the establishments employing women during the night, as prescribed by Article 1(1)(c) of the Protocol, as well as the need for laws or regulations determining the circumstances in which, and the conditions under which, such exemptions or variations may be permitted, as required by Article 1(2) of the Protocol. Noting that the Government’s report refers to the removal of the prohibition against the night work of women without specifying whether the most representative organizations of employers and workers have been duly consulted or whether a specific collective agreement has been concluded at the branch level covering all industries concerned in EPZs, the Committee requests the Government to clarify how it is given effect to the specific requirements of the Protocol both in law and practice. Moreover, the Committee notes
the Government’s indication that draft regulations on the application of Act No. 2007-037 on EPZs and enterprises have been submitted to the tripartite National Labour Council for examination. The Committee requests the Government to transmit a copy of these regulations once they have been finalized. It would also appreciate receiving practical information on the number of women workers engaged in night work and the type of enterprises concerned both within and outside EPZs.

Finally, the Committee wishes once gain to recall that the ratification of Convention No. 89 involves the immediate denunciation of Convention No. 41 but has no similar legal effect with regard to Convention No. 4 which has to be denounced separately (Convention No. 4 may be denounced at any time provided that the representative organizations of employers and workers are fully consulted in advance). The Committee hopes that that the Government will take appropriate action with respect to obsolete Convention No. 4 in the very near future and will keep the Office informed accordingly.