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

Night Work Convention, 1990 (No. 171) - Luxembourg (Ratification: 2008)

Article 1 of the Convention. Definition of the term “night work”. The Committee notes that section L.214-2 of the Labour Code defines the term “nocturnal period” for employed persons engaged in mobile road transport activities as the period between midnight and 5 a.m. The Committee draws the Government’s attention to the fact that, in accordance with Article 1 of the Convention, the term “night work” means “all work which is performed during a period of not less than seven consecutive hours, including the interval from midnight to 5 a.m.”. The Committee therefore requests the Government to take the necessary measures to raise to at least seven consecutive hours the reference period used for the purposes of the calculation of the night work of employed persons engaged in mobile road transport activities.

Article 2. Scope of application. The Committee notes that section L.211-2 of the Labour Code enumerates the categories of workers for whom working hours shall be regulated by special laws, collective labour agreements or, in their absence, regulations of the public administration. The Committee requests the Government to provide information on the regulations applicable to each of these categories of employed persons, and particularly to personnel in domestic service and nursing personnel, in relation to night work. The Committee also notes that section L.211-3 of the Labour Code excludes, among others, family enterprises and home workers from the scope of its provisions respecting hours of work. It requests the Government to indicate the reasons why it considers that the application of the provisions of the Labour Code respecting night work to workers engaged in family enterprises and home workers would raise special problems of a substantial nature justifying their exclusion from the scope of application of the Convention.

Article 7(3)(c). Maintenance of benefits. The Committee notes that section L.333-3 of the Labour Code establishes the requirement for the employer to transfer to a day job a woman employee who is pregnant or who is nursing when, in the opinion of the occupational physician, it is necessary from the viewpoint of her safety or health. It notes that, under the terms of section L.333-4, if a transfer to a day job is not technically and/or objectively possible or cannot be reasonably required for duly justified reasons, the employer, based on the opinion of the occupational physician, is required to dispense the woman worker concerned from working during the whole period necessary for the protection of her safety or health, for the period determined by the occupational physician. Furthermore, the Committee notes that, under the terms of section L.332-3 of the Labour Code, the period of maternity leave is taken into account for the determination of entitlements relating to seniority, with the employed woman worker also maintaining all the benefits that she had acquired before the commencement of maternity leave and benefiting from any improvement in working conditions to which she would have been entitled during her absence. The Committee requests the Government to indicate whether, in cases where an employed woman is dispensed from working under the terms of section L.333-4 of the Labour Code, she benefits from the rights afforded to employed women on maternity leave under the terms of section L.332-3.

Article 9. Social services. The Committee notes that, with regard to the application of this Article of the Convention, the Government confines itself to indicating in its report that night workers benefit from the same social services as other workers. It draws the Government’s attention to the provisions of Paragraphs 13 to 18 of the Night Work Recommendation, 1990 (No. 178), which advocate a number of specific measures for night workers in relation to the organization of social services in the following areas: measures relating to travel by night workers between their residence and the workplace; the improvement of the quality of rest for night workers; the provision of suitably equipped resting places; measures to be taken by the employer to enable night workers to obtain meals and beverages; the taking into consideration of the extent to which night work is performed locally when deciding on the establishment of crèche and other services for the care of young children; and the consideration of the specific constraints on night workers within the framework of measures to encourage training and retraining, as well as cultural, sporting or recreational activities for workers. The Committee requests the Government to provide more specific information on the measures adopted for the benefit of night workers in these various fields.

Article 10. Consultation of workers’ representatives. The Committee notes that section L.414-1 of the Labour Code provides that the staff delegation shall be called upon to issue its opinion and make proposals on any matter relating to the improvement of the conditions of work and employment and the social situation of employed persons in the establishment, give its opinion on the formulation or modification of the service rules or the rules of the establishment and monitor closely the implementation of such rules. It also notes that section L.423-1 of the Labour Code provides that the enterprise joint committee, which must be established in any enterprise habitually employing at least 150 employed persons, has the competence to take decisions with regard, among other matters, to the establishment or modification of the internal rules or the workshop rules, taking into account, where appropriate, the collective agreements that are in force. However, the Committee observes that no provision in the Labour Code determines precisely the role of staff representatives in cases where night workers are employed in the enterprise. It recalls that, in accordance with Article 10 of the Convention, the workers’ representatives shall be consulted regularly on the details of night work schedules, the forms of organization of night work that are best adapted to the establishment and its personnel, as well as the occupational health measures and social services which are required. The Government is requested to indicate the measures adopted to ensure the application of this provision of the Convention.

Part IV of the report form. Court decisions. The Government is requested to indicate whether courts of law or other tribunals have given decisions involving questions of principle relating to the application of the Convention. If so, the Government is requested to provide the texts of these decisions.

Part V of the report form. Application in practice. The Committee requests the Government to provide general information on the manner in which the Convention is applied in practice, including, for example, extracts from reports of the inspection services, detailed information on the categories of workers concerned and statistics on the number of male and female workers employed at night, the number and nature of violations reported and the measures taken as a result.

Finally, the Committee draws the Government’s attention to the conclusions of the ILO Tripartite Meeting of Experts on Working-Time Arrangements, held in October 2011, according to which the provisions of existing ILO standards relating to daily and weekly hours of work, weekly rest, paid annual leave, part-time and night work, remain relevant in the twenty-first century, and should be promoted in order to facilitate decent work. The Experts also emphasized the importance of working time, its regulation, and organization and management, to: (a) workers and their health and well-being, including opportunities for balancing working and non-work time; (b) the productivity and competitiveness of enterprises; and (c) effective responses to economic and labour market crises.