Night Work of Women in Industry: Standards and Sensibility

Article excerpt

In the course of the twentieth century, the ILO's Conventions concerning the prohibition of night work for women in industry were gradually relegated from the status of memorable achievements for the protection of female workers to being an embarrassment to the Organization's commitment to promote gender equality and nondiscrimination at work. The instruments in question are the Night Work (Women) Convention, 1919 (No. 4), the Night Work (Women) Convention (Revised), 1934 (No. 41), the Night Work (Women) Convention (Revised), 1948 (No. 89) and the Protocol of 1990 to the Night Work (Women) Convention (Revised), 1948. Since their adoption, these four instruments have received a total of 165 ratifications, but also 72 denunciations - a clear sign that for numerous member States these instruments have fallen into obsolescence.

Against this background, the Governing Body of the ILO requested the Committee of Experts on the Application of Conventions and Recommendations to undertake the first General Survey on the application of the Conventions concerning women's night work in industry (ILO, 2001).1 Specifically, the Committee was requested to take stock of ILO's standard-setting activities in this field over a span of 80 years and, also, to offer guidance on the unresolved question of whether the ILO instruments dealing with this matter are still relevant and suited to present needs, principles and values.

The purpose of this article is to present a synthesis of the Committee's findings. The article opens with a presentation of the general background to the current controversy over the legal prohibition of women's night work, including relevant aspects of women's labour force participation and selected findings on the effects of night work. This is followed by a short history of ILO standards on the night work of women in industry and, in a third section, a review of national law and practice in this field. The discussion then turns to the conflict between legal "protection" of female workers and the principles of non-discrimination and equal treatment. The article ends with the Committee of Experts' main findings on this issue, followed by a recapitulatory concluding section and a "postscript" outlining the positions expressed by the ILO's constituents during the discussion of the General Survey at the International Labour Conference in June 2001.

Female labour, night work and sex equality

The rationale behind the first national measures on night-time work in factories, adopted during the last quarter of the nineteenth century, was that women together with children belonged to a specific category of factory workers needing special protection because they were physically weaker than men and more susceptible to exploitation.2 The idea of protecting adult women and children against arduous working conditions also found expression in the Preamble to the ILO Constitution and later led to the adoption of several Conventions such as the Maternity Protection Convention, 1919 (No. 3), the Night Work of Young Persons (Industry) Convention, 1919 (No. 6) and the Night Work (Bakeries) Convention, 1925 (No. 20). The first ILO Convention on the night work of women thus embodied the convergence of two preoccupations - i.e. humanizing working conditions by limiting night work in general, while setting up women-specific protective rules principally on account of their reproductive role and traditional family responsibilities.

Nowadays, however, the basic premise underlying all three Conventions on women's night work in industry appears critically flawed. Indeed, there seems to be little justification for legal rules that seek to restrict access to night-time employment on the basis of sex rather than the worker's physical aptitude.3 Particularly problematic is the compatibility of such rules with the Discrimination (Employment and Occupation) Convention, 1958 (No. 111), or with the Workers with Family Responsibilities Convention, 1981 (No. …