Individual Case (CAS) - Discussion: 1991, Publication: 78th ILC session (1991)

The Government has communicated the following information:

In its last report, the Government referred to the draft amendment to the Labour Code covering all of the Convention. The draft is presently being studied by the Social and Labour Committee, which considers it constitutional and is preparing for final debate in the plenary of the Committees. However, before approval a series of studies by the various Committees of the various points related to the Convention with which the Committee of Experts is concerned is necessary.

Section 39 of the Compulsory Social Security Act transfers the obligation of members to pay maternity benefits to the Ecuador Social Security Institute (IESS), which will grant them according to the rules. Thus, once the draft amendment (sections 153 to 156) is approved by the plenary of the Committees, the High Council of the IESS, which is the competent authority for medical benefits, will bring its rules into line to give the new coverage of medical benefits and payments to members. This benefit will be of course payable to all women members including domestic workers and members in the rural sector.

The Government has also sent figures for the number of women covered by the Compulsory Social Security and the number of women members of the Rural Social Security.

Observation (CEACR) - adopted 2022, published 111st ILC session (2023)

Direct Request (CEACR) - adopted 2014, published 104th ILC session (2015)

Direct Request (CEACR) - adopted 2013, published 103rd ILC session (2014)

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

Direct Request (CEACR) - adopted 2008, published 98th ILC session (2009)

Article 1 of the Convention. Workers insured under the rural workers’ social insurance scheme, part-time workers and workers in the “maquila” sector.  Please provide detailed information on the maternity protection scheme applicable to the above categories of workers.

Please also indicate how the provisions of Article 3, paragraphs 4 and 5, and Articles 4, 5 and 6 of the Convention are applied in the maternity protection scheme for public servants.

Article 3, paragraph 4. Late confinement. The Committee notes that section 152 of the Labour Code provides for a period of compulsory postnatal leave of ten weeks, which ensures, even in the event of a late confinement, that the period of six weeks’ compulsory postnatal leave established by the Convention is respected.

Article 4, paragraph 1, read in conjunction with Article 3, paragraphs 5 and 6. Right to extended paid maternity leave in the event of medical complications linked to maternity. The Committee notes that, under section 154 of the Labour Code, women workers who suffer complications linked to pregnancy or confinement are entitled to one year’s additional leave without pay. The Government indicates in this regard that, in cases of incapacity for work resulting from confinement, the insured person receives cash benefits for six months under the sickness insurance scheme. The Committee requests the Government to indicate the relevant legal provisions and whether identical benefits apply in the event of complications arising during pregnancy.

Article 6. Dismissal during maternity leave. The Committee notes that section 153 of the Labour Code provides that employers may not terminate a worker’s employment due to pregnancy. In this regard, it recalls that the purpose of the Convention is to provide full protection for workers on maternity leave against dismissal so that they are not upset by any external factor during this period. For that reason, the Convention prohibits the dismissal or giving notice of dismissal to a woman for any reason whatsoever during the period of maternity leave. Consequently, the Government is invited to re-examine the matter so as to bring the national legislation into full conformity with the Convention. In the meantime, the Committee requests the Government to provide further information on the manner in which section 153 mentioned above is implemented by the national courts. Please indicate whether women who are dismissed during their maternity leave continue to receive maternity benefit during the entire period of their leave, as well as the rules applicable with regard to the burden of proof in the event of dismissal during leave.

Observation (CEACR) - adopted 2008, published 98th ILC session (2009)

Article 4 of the Convention. Maternity benefit. In accordance with the information provided by the Government, workers insured under the rural workers’ social insurance scheme, part-time workers, workers in the maquila sector and public employees do not receive cash maternity benefits from the Ecuadorian Social Security Institute (IESS). Recalling that these categories of workers are not excluded from the protection guaranteed by the Convention, the Committee invites the Government to indicate what medical and cash benefits are provided to these workers during maternity leave and requests it to provide a copy of the relevant legal provisions.

Article 5, paragraphs 1 and 2. Right to nursing breaks. In reply to the Committee’s previous comments on the need to explicitly guarantee the right of women workers to nursing breaks, the Government once again refers to the provisions of section 155 of the Labour Code. However, the Committee recalls that this provision, since it was amended by Act No. 133 of 1991, no longer provides for the right of women workers employed in enterprises with over 50 workers to interrupt their work to nurse their child in accordance with the Convention. It does provide, however, that these enterprises are under the obligation to provide their staff with a crèche, either individually or together with other enterprises. The Committee emphasizes once again that, in accordance with this provision of the Convention, even where crèches are available at the workplace, to be able to use them, women must first have the right to one or more interruptions of work for the purpose of nursing, which should be guaranteed by the national legislation; furthermore, these interruptions are to be counted as working hours and remunerated accordingly.

The Committee reiterates the hope that the Government will be able to supplement subsection 3 of section 155 of the Labour Code, under which women who are nursing their child shall benefit from a working day of six hours, by specifying that this reduced working day shall be counted as a full working day and remunerated accordingly.

[The Government is asked to reply in detail to the present comments in 2010.]

Direct Request (CEACR) - adopted 2003, published 92nd ILC session (2004)

1. Article 1, paragraphs 1 and 4, of the Convention. The Committee notes that, under the terms of section 2 of Social Security Act No. 2001-55 of 27 November 2001, residents of rural areas who normally work in the countryside on their account or for the community to which they belong, who do not receive remuneration from a public or private employer and who do not have recourse to persons from outside the community or to third parties to undertake economic activities under their control, may be insured by the special rural workers’ social security scheme. It requests the Government to provide detailed information on the nature of these communities, their number, size, the legal system applicable to them and the number of workers insured under the special rural workers’ social security scheme.

2. The Committee would be grateful if the Government would provide copies, with its next report, of the texts of the codified statutes of the Ecuadorian Social Security Institute.

Observation (CEACR) - adopted 2003, published 92nd ILC session (2004)

The Committee notes the information provided by the Government in its last report. It also notes the entry into force, on 30 November 2001, of Social Security Act No. 2001-55. In view of the fact that the report does not refer to any measures taken to give effect to the comments that it has made on several occasions, the Committee is bound to draw the Government’s attention once again to the points it has raised previously.

1. Article 3, paragraph 4, of the Convention. The Committee expresses the firm hope that the Government will take all the necessary measures to bring the national legislation into conformity with this provision of the Convention by including in the Labour Code a provision explicitly providing that in the event of a late confinement, the leave before the presumed date of confinement will be extended until the actual date of confinement and the period of compulsory leave to be taken after confinement will not be reduced on that account.

2. Article 5, paragraphs 1 and 2. The Government indicates in its report that the Committee’s comments relating to this provision are taken into account by section 155 of the Labour Code. However, the Committee notes that this section no longer explicitly provides, since it was amended by Act No. 133 of 1991, for the right of women workers employed in enterprises with over 50 workers, which are under the obligation to provide a crèche by virtue of subsection 1 of section 155, to interrupt their work to nurse their children, in accordance with the provisions of the Convention. The Committee therefore once again draws the Government’s attention to the need to introduce into the legislation a provision explicitly guaranteeing to all women working in enterprises to which the Convention is applicable interruptions of work for the purpose of nursing which are to be counted as working hours and remunerated accordingly, in accordance with Article 5, paragraphs 1 and 2, of the Convention. It trusts that the Government will take the necessary measures for this purpose in the near future and that, when it does so, the duration of interruptions of work for nursing a child will be determined so as to take into account the real needs of mothers and children.

The Committee also hopes that, in the case of women workers employed in enterprises which do not have a crèche, the necessary measures will be taken to supplement subsection 3 of section 155 of the Labour Code, under which women who are nursing their child shall benefit from a working day of six hours, by specifying that this reduced working day shall be counted as a full working day and remunerated accordingly.

3. The Committee notes from the Government’s report that the statistics requested previously on the number of women workers employed in industrial enterprises and in non-industrial and agricultural work who are covered by the compulsory insurance system or by the rural workers’ social insurance scheme as a proportion of the total number of women workers (including women wage earners working at home) are still not available, but should be forthcoming soon. It trusts that the Government will be in a position to provide the requested statistics with its next report.

Observation (CEACR) - adopted 1998, published 87th ILC session (1999)

The Committee notes the information provided by the Government in its last report according to which no legislative reform has been undertaken in response to the Committee's previous comments. Therefore, it is bound to draw the Government's attention once again to its previous comments.

1. Article 3, paragraph 4, of the Convention. The Committee once again hopes that the Government will take all the necessary measures to include in the Labour Code provisions explicitly providing that in the event of a late confinement, the leave before the presumed date of confinement shall be extended until the actual date of confinement and the period of compulsory leave to be taken after confinement shall not be reduced on that account, in accordance with this particular provision of the Convention.

2. Article 5, paragraphs 1 and 2. In its earlier comments, the Committee had noted that, as a result of the revision of section 156 of the Labour Code by Act No. 133 of 1991, the provision authorizing a mother working in an enterprise of 50 or more workers to interrupt her work in order to nurse her child was abolished. In this regard, the Committee again draws the Government's attention to the need to introduce into legislation a provision expressly providing for nursing breaks for women working in such enterprises, in accordance with Article 5, paragraph 1, of the Convention. Furthermore, the Committee trusts that, in determining the length of such nursing breaks, the Government will take account of the real needs of mothers and children. (In this regard, the Committee draws the Government's attention to the fact that the 15-minute breaks provided for under the old paragraph 2 of section 156 of the Labour Code, which has been repealed, seem too short.)

3. The Committee notes that the Government's report provides no information on the coverage of the social security scheme and that the statistics that had been promised have not been received by the ILO. Under these circumstances, the Committee is bound once again to request the Government to provide in its next report statistics on the number of women workers employed in industrial undertakings or in non-industrial and agricultural employment who are covered by the compulsory insurance system or by the peasants social insurance schemes as a proportion of the total of number of women workers (including women wage- earners working at home). The Committee also hopes that the Government will be able to provide information on any new extension of the social insurance scheme in order to extend coverage to all the categories of women workers referred to Article 1 of the Convention.

Observation (CEACR) - adopted 1993, published 80th ILC session (1993)

1. With reference to its previous observation, the Committee notes with satisfaction the adoption of Resolution No. 783 of 14 April 1992 by the Ecuadorian Social Security Institute (IESS) to amend section 97 of its codified statutes under which, in conformity with Article 4, paragraph 1, of the Convention, the period of the payment of cash maternity benefits has been extended to 12 weeks in accordance with Article 4 of the Convention. It also notes the Government's statement that this resolution applies both to women workers covered by the compulsory social insurance scheme, including domestic personnel, as well as women workers protected by the peasants' social insurance scheme.

2. Article 3, paragraph 4, and article 5, paragraph 2. In reply to the Committee's previous comments, the Government states that proposals to bring the national legislation into conformity with these provisions of the Convention and with national practice have been submitted to the National Congress on several occasions, but were not adopted when Act No. 133 of 21 November 1991 was enacted to reform the Labour Code. The Government states, however, that it will continue to urge the legislative authority to re-examine the question as rapidly as possible. The Committee is therefore bound once again to hope that the Labour Code will be supplemented by provisions explicitly providing that in the event of a late confinement the leave before the presumed date of confinement shall be extended and the period of compulsory leave to be taken after confinement shall not be reduced on that account, in accordance with Article 3, paragraph 4, of the Convention, and that interruptions of work for the purpose of nursing are to be counted as working hours and remunerated accordingly, in accordance with Article 5, paragraph 2.

3. Article 5, paragraph 1. With reference to its previous comments, the Committee recalls that, following the revision of section 156 of the Labour Code by Act No. 133 of 1991, the provision authorizing a mother working in an enterprise of 50 or more workers to interrupt her work in order to nurse her child was eliminated. On this subject, the Committee notes the communication of 27 February 1992 of the Ecuadorian Confederation of Free Trade Unions (CEOSL) concerning the application by Ecuador of Conventions Nos. 103 and 131, in which it points out that the elimination of the above provision is a violation of Article 5, paragraph 1, of Convention No. 103.

In its report, the Government indicates that this provision was eliminated due to the fact that it was not applied in practice, since the general custom is for mothers, during the first nine months following the birth of their child, to prefer to benefit from a reduced working day of six hours, using the two hours' reduction to nurse and tend to their child. It adds that the redistribution of the reduced working day is in accordance with the provisions of the collective agreement, the internal rules or agreement between the parties, under section 156 of the Labour Code, and that this reduction in working time does not result in a reduction in wages. While noting this information, the Committee wishes to draw the Government's attention to the fact that under section 156 of the Labour Code, as amended, the right to a reduced working day is only granted to women working in enterprises which do not have a crèche and in principle does not concern women working in enterprises with 50 or more workers which are obliged to provide child care facilities. The Committee therefore trusts that the Government will not fail to take the necessary measures to introduce into the legislation an explicit provision providing that women working in enterprises with 50 or more workers which have child care facilities have the right to interruptions of work for the purpose of nursing of sufficient duration, in accordance with Article 5, paragraph 1, of the Convention.

4. In its previous comments, which it has been making for many years, the Committee expressed the wish to be provided with information concerning the scope of the social insurance scheme. Since the Government's report does not contain a reply on this point, the Committee once again requests the Government to provide statistical information on the number of women workers in an employment relationship who are protected by the compulsory social insurance scheme and the peasants' social insurance scheme as a percentage of the total number of women workers in industrial enterprises and in non-industrial and agricultural work (including women wage-earners working at home). Furthermore, it hopes that the Government will be able to supply information on any new extension of the scope of the social insurance scheme so as to cover all the categories of women workers referred to in Article 1 of the Convention.

Direct Request (CEACR) - adopted 1992, published 79th ILC session (1992)

1. Article 3, paragraph 4, of the Convention. Further to its previous comments, the Committee again expresses the hope that measures will be taken to give effect to this provision of the Convention, according to which "the leave before the presumed date of confinement shall be extended by any period elapsing between the presumed date of confinement and the actual date of confinement, and the period of compulsory leave to be taken after confinement shall not be reduced on that account". It asks the Government to report any progress made in this regard.

2. Article 5, paragraph 1. The Committee notes that following the revision of section 156 of the Labour Code by Act No. 133 of 1991 there would appear to be no longer a provision authorising a mother, working in an undertaking of 50 or more workers, to interrupt her work in order to nurse her child. The Committee would like the Government to indicate in its next report the measures taken or contemplated to introduce in the legislation an express provision giving effect to Article 5, paragraph 1, of the Convention, as far as women working in an undertaking of 50 or more workers. The Committee also hopes that in fixing such nursing breaks the Government will take into account the effective needs of the mother and the child (in this respect the 15-minute period for nursing break authorised by former paragraph 2 of section 156 of the Labour Code appears to be too short).

3. Article 5, paragraph 2. The Committee observes that, although section 156 of the Labour Code has been amended by Act No. 133 of 13 November 1991, the national legislation still does not contain a provision stipulating expressly that "interruptions of work for the purpose of nursing are to be counted as working hours and remunerated accordingly", in conformity with this provision of the Convention. It therefore reiterates its hope that the Government will take appropriate measures in the very near future in order to ensure full compliance of the national legislation with the Convention on this point.

Observation (CEACR) - adopted 1992, published 79th ILC session (1992)

1. Article 3, paragraphs 2 and 3, of the Convention. Further to its previous observations, the Committee notes with satisfaction the adoption of Act No. 133 of 13 November 1991, sections 23, 24 and 25 of which amend sections 153, 154 and 155 of the Labour Code, in conformity with these provisions of the Convention, by extending the total duration of maternity leave to 12 weeks, ten of which have to be compulsorily taken after confinement.

2. The Committee hopes that, according to the assurance given by the Government in its last report, necessary measures at the level of the Ecuador Social Security Institute will be adopted in the very near future so as to align, in accordance with Article 4, paragraph 1, of the Convention, the period during which cash and medical benefits are granted with that of maternity leave, as set out in section 153 of the Labour Code as amended, in respect of both women workers covered by the compulsory social insurance scheme, including domestic workers, and women workers covered by the peasants' social insurance scheme.

3. The Committee takes note of the statistical information supplied by the Government on the number of women workers protected by the compulsory social insurance and by the peasants' social insurance scheme. It hopes that the Government's next report will also contain statistical information reflecting the number of women workers protected as a percentage of the total number of women workers. Furthermore, the Committee expresses the hope that the Government will be able to provide information on any further extension of the social security scheme so as to cover all the categories of women workers referred to in Article 1 of the Convention throughout the country.

Observation (CEACR) - adopted 1991, published 78th ILC session (1991)

1. (1) The Committee notes from the Government's reply to its earlier comments that the Legislative Committee on Social and Penal Matters is going to approve a draft legislation concerning the protection of women during the period before and after confinement which would satisfy the requirements of the Convention. It observes, however, that no measures have yet been adopted in order to bring the national legislation into conformity with the following provisions of the Convention: (a) Article 3, paragraphs 2 and 3 (total length of maternity leave of at least 12 weeks, of which six weeks of compulsory leave to be taken after confinement); (b) Article 3, paragraph 4 (extension of pre-natal leave until the actual date of confinement without reduction of post-natal leave); and (c) Article 5, paragraph 2 (breaks for the purpose of nursing to be counted as working hours and remunerated accordingly).

The Committee recalls that this matter has been the subject of comment for many years and reiterates its hope that the Government will not fail to take necessary measures in order to introduce amendments to sections 153 to 156 of the Labour Code, as already expressed by the Government in its previous reports, in order to ensure the application of the above-mentioned provisions of the Convention.

(2) Article 4, paragraph 1. The Committee hopes that the above-mentioned draft legislation would also provide for the extension of the period during which cash and medical benefits shall be granted, so as to cover a period of the maternity leave of 12 weeks, as provided for in the Convention. The Committee can but reiterate its hope that such measures will be adopted in the near future in respect of both women workers covered by the compulsory social insurance scheme, including domestic workers, and women workers covered by the peasants' social insurance scheme.

2. The Committee would be grateful if the Government would supply statistical information not only on the number of women workers covered both by the compulsory insurance scheme and by the peasants' social insurance scheme, but also on their percentage in relation to all women workers of the country. It once again requests the Government to provide information on any further extension of the social insurance scheme so as to cover all the categories of women workers referred to in Article 1 of the Convention.

[The Government is asked to report in detail for the period ending 30 June 1991.]

Observation (CEACR) - adopted 1990, published 77th ILC session (1990)

1. (a) The Committee refers to its previous comments concerning, inter alia, the application of Article 3, paragraphs 2 and 3 of the Convention, in which it noted that under section 153 of the Labour Code the pre-natal maternity leave is two weeks and the post-natal leave is six weeks, a total of eight weeks, whereas according to these provisions of the Convention the duration of maternity leave shall be at least 12 weeks of which six weeks shall be taken after confinement. It also refers to the observations made in March 1989 by the Ecuador Central of Working Class Organisations (CEDOC) concerning this question.

The Committee notes with interest from the Government's report that a Draft Legislative Decree has been elaborated so as to introduce amendments to sections 153 to 156 of the Labour Code which, once adopted, will bring the national legislation into conformity with these provisions of the Convention, as well as with its Article 3, paragraph 4 (extension of pre-natal leave until the actual date of confinement without reduction of post-natal leave) and Article 5, paragraph 2 (breaks for the purpose of nursing to be counted as working hours and remunerated accordingly). Since this matter has been the subject of comment for many years, the Committee hopes that such amendments will be adopted in the very near future so as to ensure the application of the above-mentioned provisions of the Convention.

(b) Article 4, paragraph 1. The Committee notes from the Government's report the intention of the Government to provide, in the above-mentioned legislative decree, for the extension of the period during which cash and medical benefits shall be granted, so as to coincide with the extended period of the maternity leave (12 weeks). It recalls that, according to the requirements of the Convention, the period during which cash and medical benefits are provided shall also coincide with any period of additional leave due as a result of illness arising out of pregnancy or confinement as well as error in estimating the date of confinement. The Committee hopes that the necessary legislative measures will soon be taken in order to meet these requirements of the Convention in respect of both women workers covered by the compulsory social insurance scheme, including domestic workers, and women workers covered by the peasants' social insurance scheme.

2. The Committee would be glad if the Government would supply statistics on the number of women workers covered both by the compulsory insurance scheme and by the peasants' social insurance scheme, and on their percentage in relation to all women workers of the country. It also asks the Government to continue to provide information on any further extension of the social insurance scheme so as to cover all the categories of women workers referred to in Article 1 of the Convention. [The Government is asked to report in detail for the period ending 30 June 1990.]