Moves to lift ban on women's night work

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The French government has proposed a legislative amendment to lift the statutory ban on women's night work in industry, thus clearing up long-standing legal confusion and bringing national law into line with EU law. However, on 3 October 2000, against all expectations, the Senate voted down the government amendment.

Article L.213-1 of the French Labour Code prohibits night work - between 22.00 and 05.00 - by women in industry. Legislation adopted in 1979 relaxed this ban by introducing special dispensation for women in managerial or technical executive positions of responsibility, while 1987 legislation authorised a new system of exemptions where there are specific grounds and justification for the use of women's night work resulting from particularly serious circumstances, or in the case of work in successive shifts. Furthermore, France has denounced the 1948 International Labour Organisation (ILO) Convention No. 89 concerning night work of women employed in industry, which prohibited such work by women

On 25 July 1991, the European Court of Justice (ECJ) ruled against France in the case of Criminal proceedings against Alfred Stoeckel (C345/89), strongly criticising the ban on women's night work as being at odds with the 1976 EU Directive (76/207/EEC) on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions. Due to the fact that Community law prevails, and French law does not comply in this area, the Stoeckel ruling effectively rendered the French regulation null and void. Thus, any individual may request that a French judge overturn Article L.213-1 of the Labour Code, which does not comply with Community law. However, the 1976 Directive has never been reflected in the Labour Code despite the ECJ's ruling in March 1997 in the case of Commission v French Republic (C197/96) that France had failed its duty by not abrogating the relevant Article of the Code (FR9704140N).

In 1999, the European Commission asked the ECJ to impose a financial sanction on France to the tune of EUR 142,425 per day, calculated from 13 March 1997, the date of ruling against France in case C197/96. This fine would remain in force for as long as France continued to ignore the 1976 equal treatment Directive. To date, the fine would amount to around FRF 1.2 billion.

In its defence, the French Government maintains that there is no longer either de facto or legal discrimination between men and women in terms of night work. Given that France has denounced ILO Convention No. 89, it states that Article L.213-1 of the Labour Code is no longer in force. Therefore, as noted above, French citizens may use the provisions of the EU equal treatment Directive in French courts to circumvent the ban on night working for women. In the wake of the relaxation of the legislation in 1979 and 1987 and the ECJ's Stoeckel ruling, night work among French women is already a reality. In 1998, 6% of women employees (580,000) worked at night, a dramatic increase on 1991 figures. The most significant increases have been in regular night work (between 51 and 100 nights annually) and in systematic night work (over 100 nights annually).

Amendment proposed and rejected

In an attempt to regularise this situation, in autumn 2000 the government introduced a parliamentary amendment to a bill on equality between women and men at work.

This amendment aimed to provide a certain number of safeguards and advantages for all night workers. It also set out a framework for, and definition of, night working. Under the amendment, night workers were defined as employees who, according to their normal work schedule, work a period of no less than three hours of their normal working day between 22.00 and 05.00 at least twice a week, or those employees who work a minimum number of night hours during a set period of time. The amendment provided for various advantages for both men and women. These included extra rest periods or extra pay if these rest periods were not available. The government amendment also bolstered protection for pregnant women by enabling them, where required, to transfer to a day job for the duration of their pregnancy. It implemented a medical follow-up system for all employees to monitor the health hazards inherent in this type of work and to provide safeguards for those workers declared unfit for night work (such as transfer). In addition, the amendment would have forced sectors and individual companies to convene three-yearly negotiations on night work.

On 3 October 2000, against all expectations, the Senate voted down the government amendment.

Trade union positions

The trade unions are strongly divided over lifting the ban on women's night work. While CFDT is in favour of a review of French night work legislation, which it believes discriminates against women, it is keen to see certain rules implemented. For CFDT, women's night work:

• must not be open-ended;

• should be on a voluntary basis; and

• must be accompanied by a reduction in the working week and allow for promotion and career development opportunities for those women involved

CGT and above all CFTC and CGT-FO are advocating that the ban on women's night work be maintained. CGT-FO, while reiterating its commitment to equality between women and men at work, believes that allowing women to work at night represents a "step backwards in labour standards". Consequently, it is advocating "a ban on night work for both men and women with stringently controlled dispensations accorded to certain industries only, when unavoidable imperatives require them. This type of measure would not contradict the 1976 EU Directive." This reluctance by the unions to lift the ban explains the softly-softly approach adopted by the government.

Commentary

Given the Senate decision and trade union misgivings, the government remains cautious. Nevertheless, the Secretary of State for Women's Rights, Nicole Péry, does not believe that the Senate decision will in any way alter the government's agenda. She has pointed out that "the discussion process will continue in the National Assembly," which will hold its second reading of the bill on 30 November. Ms Péry added: "I remain convinced that the modernisation of domestic French statutes must include major safeguards and assurances for night workers." (Christèle Meilland, IRES)