Observation (CEACR) - adopted 2009, published 99th ILC session (2010)

With reference to its previous comments, the Committee notes the information and statistics provided in the Government report and, in particular, the information concerning the application of Article 6 of the Convention regarding the prohibition of dismissal during maternity leave, including the opinion of the Technical and Legal Advisory Council of the Ministry of Labour and Social Welfare.

Article 1. Coverage. The Committee recalls that, in 2003, the Government expressed the intent to extend geographical coverage of the sickness, maternity and employment injury scheme of the Guatemalan Social Security Institute (IGSS) to the remaining three departments (El Petén, El Progreso and Santa Rosa). In this respect, the report indicates that feasibility studies regarding the extension of coverage of the sickness and maternity insurance scheme found that such extension would result in losses for the IGSS and that consequently the only way to extend coverage would be through the use of public funds (capital solidario). The administration has put out to public tender the feasibility and viability studies to extend the sickness and maternity programmes and the Government has committed itself to follow-up on this process and inform the Committee accordingly. With regard to statistics on the number and categories of women workers actually covered by the sickness and maternity scheme of the IGSS requested by the Committee in its previous comments, the Government indicated that no such statistics were available, but that currently a new system was being developed to collect this type of information. The Committee takes due note of the Government’s commitment to extend maternity benefits to women workers in the departments of El Petén, El Progreso and Santa Rosa either through the sickness and maternity insurance scheme of the IGSS or by means of public funds. The Committee hopes that concrete progress will be achieved in this area in the very near future and that the Government will be able to effectively monitor the situation through the new system of collection of statistical indicators on the number of women actually enjoying maternity benefits both in the public and private sectors and irrespective of the size of the enterprise.

Article 3, paragraphs 2 and 3. Compulsory period of maternity leave. In its previous comments, the Committee asked the Government to amend section 152 of the Labour Code in order to guarantee a period of compulsory post-natal leave of at least six weeks. In response, the Government states that section 34 on the Regulations respecting cash benefits (Order No. 468 of the IGSS) makes the right to maternity cash benefit conditional on effective rest of the woman worker, who has to abstain herself from remunerated work while in receipt of maternity cash benefits. The Committee observes that section 34 prohibits women from receiving concurrently maternity cash benefits and income from work, but does not establish a minimum period of compulsory post-natal maternity leave required by the Convention as a protective measure aimed to prevent women from resuming work as a result of pressure or need before the expiry of the statutory period of leave to the detriment of her health. The Committee therefore once again urges the Government to legally guarantee the compulsory period of post-natal leave of at least six weeks to all women covered by the Convention and to prohibit employers from employing a woman during her post-natal leave.

Article 4, paragraph 1. Suspension of benefits. In its previous comments the Committee asked the Government to repeal the provisions which allow suspension of benefits in the event of “clearly anti-social behaviour” of the beneficiary (section 48 of the Regulations on sickness and maternity protection, section 149 of the Regulations on medical assistance and section 71 of the Regulations on cash benefits). In response, the Government informs that in the last year and a half there have been no cases of dismissal on the basis of the provisions in question and that an information programme has been developed by the IGSS on the rights and obligations of women who are entitled to the maternity protection programme. In the light of the practice, the Committee trusts that the Government will have no difficulty in repealing the abovementioned provisions in the very near future.

Article 4, paragraphs 4, 5 and 8. Employer liability. The Committee trusts that the Government’s next report will contain a detailed reply to the Committee’s longstanding request to amend the national legislation under which the employer may be required to bear the cost of maternity benefits for women workers who are not yet covered by the social security scheme (Chapter X, section 10, of the Basic Act respecting the IGSS) or have not completed the requisite qualifying period (section 23 of the Regulations on sickness and maternity protection and section 24 of the Regulations on cash benefits).

[The Government is asked to reply in detail to the present comments in 2011.]