Night Work (Women) Convention (Revised), 1948 (No. 89) - Bolivia (Plurinational State of) (RATIFICATION: 1973)

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Articles 2 and 3 of the Convention. Prohibition of night work for women. The Committee has been drawing the Government’s attention for several years to sections 46 and 60 of the General Labour Act which are not fully aligned with the requirements of the Convention, particularly the duration of the night period and the exemption possibilities with respect to the prohibition of night work for women. However, beyond the legislative conformity with the provisions of the Convention, the Committee has also been drawing attention to the fact that protective measures for female workers, such as blanket prohibitions or restrictions – as contrasted to special measures aimed at protecting women’s reproductive and maternal capacity – are increasingly subjected to extensive criticism as obsolete and unnecessary infringements of the fundamental principle of equality of opportunity and treatment between men and women. The Committee recalls in this connection that, should the Government decide in the context of preparing the new General Labour Act to remove all restrictions on women’s night work for reasons of equality between men and women and non discrimination in employment and occupation, it may wish to consider the ratification of the Night Work Convention, 1990 (No. 171), which is not devised as a gender-specific instrument and which focuses on the safety and health protection of all night workers irrespective of gender in all branches and occupations. In case the Government decides that the latter instrument better reflects the socio-economic needs of the country and corresponds more closely to the Government’s priorities in matters of women’s employment promotion, it will have to formally terminate its obligations under Convention No. 89 when the Convention will next be open to denunciation, as from 27 February 2021. The Committee accordingly requests the Government to keep the Office informed of any decision taken or envisaged concerning the possible ratification of Convention No. 171 and the eventual denunciation of Convention No. 89.

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Article 3 of the Convention. Prohibition of night work of women. The Committee has been drawing the Government’s attention to the fact that Convention No. 89 is widely criticized as being contrary to the overriding principle of gender equality and restricting the individual worker’s freedom of choice on working time solely on the basis of sex. For this reason, the International Labour Conference decided to partially revise the Convention by adopting the 1990 Protocol to Convention No. 89, and also adopted a new Night Work Convention, 1990 (No. 171), which no longer applies to a specific category of workers and sector of economic activity but to all night workers irrespective of gender in all branches and occupations. For the same reasons, the Committee has been inviting States parties to the Convention to ratify either the Protocol if they considered that women’s protection from the harmful effects and risks of night work was still relevant, or the new Night Work Convention if they were prepared to eliminate all restrictions on night work for women.

The Committee recalls, in this connection, paragraphs 168–169 of its 2001 General Survey on the night work of women in industry, in which it noted that the full realization of the principle of non-discrimination requires the repealing of all laws and regulations which apply different legal prescriptions to men and women, except for those related to pregnancy and maternity. 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 Bolivia is a party since June 1990), as later reaffirmed in point 5(b) of the 1985 ILO resolution on equal opportunities and equal treatment for men and women in employment.

In its last report, the Government indicates that the new Constitution, which was promulgated on 7 February 2009, establishes a new hierarchy among legal norms placing international treaties before national laws, statutes and decrees. The Government adds that in preparing the new General Labour Act, the Ministry of Labour, Employment and Social Protection will consider the suggestions of the Committee. The review of the content and scope of each of the two instruments adopted in 1990 would clarify fundamental options of the new General Labour Act that is currently being drafted. In light of these observations, the Committee invites the Government in consultation with the social partners, to consider the possibility of ratifying the Night Work Convention, 1990 (No. 171), which applies to all night workers in all branches and occupations. The Committee requests the Government to keep the Office informed of any decision taken or envisaged in this regard.

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The Committee notes that the Government’s report has not been received. It must therefore repeat its previous observation which read as follows:

The Committee recalls its previous comments in which it noted that the night period provided for in section 46 of the General Labour Act is not consistent with the 11-hour minimum nightly rest required under Article 2 of the Convention, whereas section 60 of the General Labour Act refers to broader exemption possibilities than those specifically allowed by the Convention. With reference to the ongoing process of revision of the General Labour Act, the Committee notes the Government’s request for technical assistance to the work of the tripartite committee responsible for amending the Act in conformity with the suggestions of the Committee of Experts.

The Committee takes this opportunity to refer to paragraphs 191 to 202 of its General Survey of 2001 on the night work of women in industry, in which it observed that the present trend is no doubt to move away from a general prohibition against women’s night work and to give the social partners the responsibility for determining the extent of the permitted exemptions. In this respect, 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. It also suggested that 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 the new Night Work Convention, 1990 (No. 171), to realize the advantages of modernizing their legislation in line with the provisions of the Protocol. Therefore, the Committee once again invites the Government to give favourable consideration to the ratification of the 1990 Protocol which affords greater flexibility in the application of the Convention while remaining focused on the protection of female employees and requests the Government to keep the Office informed of any decision taken in this respect. Finally, the Committee trusts that the Government may draw on the Office’s technical cooperation and expert advice in amending its labour legislation in line with the preceding observations and expresses the firm hope that the Government will be in a position to indicate substantial progress in this regard in the very near future.

The Committee hopes that the Government will make every effort to take the necessary action in the very near future.

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The Committee recalls its previous comments in which it noted that the night period provided for in section 46 of the General Labour Act is not consistent with the 11-hour minimum nightly rest required under Article 2 of the Convention, whereas section 60 of the General Labour Act refers to broader exemption possibilities than those specifically allowed by the Convention. With reference to the ongoing process of revision of the General Labour Act, the Committee notes the Government’s request for technical assistance to the work of the tripartite committee responsible for amending the Act in conformity with the suggestions of the Committee of Experts.

The Committee takes this opportunity to refer to paragraphs 191 to 202 of its 2001 General Survey on the night work of women in industry, in which it observed that the present trend is no doubt to move away from a general prohibition against women’s night work and to give the social partners the responsibility for determining the extent of the permitted exemptions. In this respect, 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. It also suggested that 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 the new Night Work Convention, 1990 (No. 171), to realize the advantages of modernizing their legislation in line with the provisions of the Protocol. Therefore, the Committee once again invites the Government to give favourable consideration to the ratification of the 1990 Protocol which affords greater flexibility in the application of the Convention while remaining focused on the protection of female employees and requests the Government to keep it informed of any decision taken in this respect. Finally, the Committee trusts that the Government may draw on the Office’s technical cooperation and expert advice in amending its labour legislation in line with the preceding observations and expresses the firm hope that the Government will be in a position to indicate substantial progress in this regard in the very near future.

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The Committee takes due note of the information supplied by the Government in its report.

The Committee recalls its previous comments in which it noted that, according to article 46 of the General Labour Act of 26 May 1939 as amended, night work is defined as any work performed between 8 p.m. and 6 a.m., that is a period of ten hours, whereas Article 2 of the Convention provides that the term "night" signifies a period of at least 11 consecutive hours. In addition, the Committee has been requesting the Government for many years to clarify the exact meaning of article 60 of the above Act according to which the prohibition of night work does not apply to "other forms of work to be determined".

In its report, the Government states that the exemption referred to in article 60 relates to women employed in certain branches of activity such as the health sector, radio and television media, telecommunications, and civil or commercial aviation. The Committee takes note of this information but once again recalls that the only exceptions allowed by the Convention are those specifically provided for under Articles 3, 4, 5 and 8. Furthermore, the Committee observes that under article 52 of the regulations relative to the General Labour Act, Decree of 23 August 1943, the Minister of Labour may grant special authorizations "in specific cases" which again shows the need to ensure that any exceptions to the night work prohibition meet the strict requirements of the provisions of the Convention.

The Committee also notes that the Government refers once more to the ongoing process of revision of the labour legislation. It recalls that since 1993 a preliminary draft of the new General Labour Act had been elaborated which, according to the Government’s indications, would have taken into consideration the comments of the Committee in order to bring the national legislation into conformity with the international labour Conventions ratified by Bolivia.

The Committee trusts that the necessary measures will be adopted without further delay to eliminate the discrepancies to which the Committee has been drawing attention for some time past. It requests the Government to keep it informed of any progress achieved in this regard.

The Committee also wishes to draw the Government’s attention to the Protocol of 1990 to Convention No. 89, which offers greater flexibility in the application of this Convention.

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The Committee notes the Government's report.

In its previous comments, the Committee referred to the following points: (a) the definition of the night period during which the work of women is prohibited and which, in accordance with section 46 of the General Labour Act, is from 8 p.m. to 6 a.m., making ten hours, whereas Article 2 of the Convention envisages 11 consecutive hours; (b) the specification of the "other work" referred to in section 60 of the above Act, and which is exempt from the prohibition provided for in the Act.

The Government states in its report that the Committee's comments were taken into account, including those relating to the Convention, in the preliminary draft of the new General Labour Act, drafted by a commission of Bolivian jurists with the technical cooperation of the ILO. The Committee notes this information and requests the Government to continue supplying information on any progress achieved in this respect.

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The Committee refers to its previous comments which concerned the following points: (a) definition of the night period during which the work of women is prohibited and which, in accordance with section 46 of the General Labour Act, is from 8 p.m. to 6 a.m., making ten hours, whereas Article 2 of the Convention envisages 11 consecutive hours; (b) the specification of the "other work" referred to in section 60 of the above Act, and which is exempt from the prohibition provided for in the Act.

The Committee takes note of the Government's reply in its last report, which refers to the draft provision of Convention No. 89. It points out that, as the above draft is still in the process of being discussed, the decision of the International Labour Conference at its 77th Session to which the draft will be submitted can on no grounds be prejudged.

The Committee asks the Government meanwhile to examine the possibility of taking the necessary measures to give effect to the provisions of the Convention and to report on any progress achieved in this regard.