Observation (CEACR) - adoptée 2005, publiée 95ème session CIT (2006)

Convention (n° 89) sur le travail de nuit (femmes) (révisée), 1948 - Inde (Ratification: 1950)

The Committee takes note of the information supplied by the Government in response to its previous observation. It also notes the comments of the Centre of Indian Trade Unions (CITU), dated 24 August 2005, on the application of the Convention.

Article 1, paragraph 1(a), of the Protocol. The Committee notes that according to the terms of the proposed amendment to section 66 of the Factories Act, 1948, the employment of women workers between 7 p.m. and 6 a.m. is to be allowed provided that adequate safeguards are made by the occupier of the factory as regards occupational health and safety, equal opportunity for women workers, adequate protection of their dignity, honour and safety and their transportation from the factory premises to the nearest point of their residence. The revised text also provides for prior consultations with the concerned employer, or employers’ organization, and workers, or workers’ representative organizations. The Committee recalls, in this respect, that under Article 1(1)(a) of the Protocol, exemptions from the prohibition of night work or variations in the duration of the night period in a specific branch of activity or occupation may be permitted only if the representative organizations of the employers and workers concerned have concluded an agreement to this effect or have given their agreement. The Committee draws therefore the Government’s attention to the need to modify the draft amendment, which requires mere consultation with the concerned employers and workers, in order to ensure full conformity with the provisions of the Protocol.

In this connection, the Committee notes the comments made by the CITU according to which the proposed amendment does not require any specific agreement between the employers and employees, its provisions on transportation are vague while the responsibility does not lie with the employer but with the occupier of the factory. The CITU argues that the amendment is not based on any proper study of the current situation, concerns or needs of women workers. It also denounces existing practices whereby even pregnant and breastfeeding women are threatened and forced to work at night despite the ban on women’s night work in force. The Committee requests the Government to transmit together with its next report any comments it may wish to make with regard to the observations of the CITU.

Article 2, paragraph 1. The Committee notes the Government’s indication that under section 5 of the Maternity Benefit Act, 1961, a woman is entitled to the payment of maternity benefit at the rate of the average daily wage for a maximum period of 12 weeks of which not more than six weeks must precede the date of her expected delivery. The Committee also notes the Government’s statement that there is no explicit provision under the proposed amendment to the Factories Act prohibiting the employment of women factory workers during the night period before and after childbirth for at least 16 weeks, as required under this Article of the Protocol. The Committee therefore requests the Government to indicate the measures taken or envisaged in order to give full effect to the requirements of the Protocol in this regard.

Article 3 and Parts IV and V of the report form. The Committee notes the information provided by the Government concerning the decision of the Madras High Court of December 2000 by which the prohibition of night work for women was declared unconstitutional and discriminatory and which eventually led the Government to introduce in July 2003 a Bill to amend section 66 of the Factories Act. It also notes the brief account on the views expressed by trade unions, women’s organizations and other interested groups during the examination of this Bill by the Standing Committee on Labour and Welfare of the National Parliament in October 2003. Moreover, the Committee notes the statistical information supplied by the Government concerning the number of women workers employed in the various states and the exemptions which have been granted to certain textile/spinning industries and food industries permitting the employment of women up to 10 p.m. The Committee would be grateful if the Government would continue to provide up-to-date information concerning the application of the Convention and its Protocol in practice, especially once the amendment to the Factories Act is formally enacted and takes effect.

Finally, the Committee notes the Government’s statement to the effect that the ratification of the Night Work Convention, 1990 (No. 171), might be considered once the relevant laws and regulations are brought into conformity with the requirements of that Convention. The Committee once again invites the Government to make its best effort to give favourable consideration to the ratification of Convention No. 171, which, contrary to Convention No. 89, no longer follows a gender-oriented perspective but addresses the issue of night work for both men and women in its occupational safety and health dimension. The Committee asks the Government to keep it informed of any further developments in this regard.