Observation (CEACR) - adoptée 2003, publiée 92ème session CIT (2004)

Article 1 of the Convention. Scope of application. The Committee notes the Government’s indication in its report that, as Act No. 13 of 1980 is applicable to all categories of workers, it considers that Article 1 of the Convention is applied. However, the Committee wishes to emphasize once again that for many years its comments concerning Article 1 of the Convention are not related to Act No. 13 mentioned above, but to section 1 of the Labour Code, which excludes from its scope, and therefore from the provisions of the Labour Code on maternity protection, the following categories of women workers who are nevertheless covered by the Convention: domestic workers and persons in similar categories, women engaged in stock-raising and agriculture (except those who work in enterprises processing agricultural products or repairing machinery necessary for agriculture) and permanent or temporary public officials working in state administrations and public bodies. The Committee also noted that some of these categories of women workers will be covered by special regulations. Noting that the Government’s report does not provide the information requested on this matter, the Committee expresses the firm hope that the Government will adopt all the necessary measures as soon as possible to be able to respond to the Committee’s concerns relating to the individual scope of application of the Convention, and that it will provide copies of the above regulations with an indication, in detail, of the manner in which the categories of women workers excluded from the scope of application of the Labour Code benefit from the protection envisaged by the Convention in relation to Article 3 (maternity leave), Article 5 (nursing breaks) and Article 6 (prohibition of dismissal).

Article 2. The Committee notes that the Government’s report does not contain the information requested in its previous observations. It had noted that, under the terms of section 5 of the Regulations respecting registration, contributions and inspection of 1982, the registration under the social security system of non-Libyan officials is on a voluntary basis, unless an agreement has been concluded with the countries of which these workers are nationals. The Committee therefore once again requests the Government to indicate the number of non-Libyan officials who are women and, where appropriate, the number of such women who are covered by the social security system.

Article 3, paragraphs 2, 3 and 4. Duration of maternity leave. The Committee notes the Government’s statement in its report in 2000 to the effect that the incompatibility between Act No. 13 of 1980 respecting social security and the Labour Code of 1970 has been eliminated in the new draft text of the Labour and Employment Code that is to be submitted to the General People’s Congress for examination and enactment. The Committee notes that section 67 of the above draft text provides for maternity leave of 90 days, of which one part, taken following confinement and not exceeding six weeks, shall be compulsory; this leave may be extended to 100 days in cases where the woman gives birth to more than one child. However, it notes that, in its last report submitted in 2001, the Government no longer refers to the draft text of the new Labour and Employment Code and does not therefore indicate the progress made with its examination and enactment. In these conditions, the Committee is bound to reiterate that the statutory law still consists of the Labour Code of 1970 and it is therefore bound to recall that section 43 of the Labour Code, which provides for the granting of pre- and postnatal maternity leave of a total duration of 50 days, is not in conformity with Article 3 of the Convention, which provides for the granting of maternity leave of a minimum duration of 12 weeks, which shall include a period of six weeks compulsory leave after confinement.

Furthermore, noting that the Government’s report has still not provided the information requested on the other matters raised in its previous observations, the Committee is bound to request the Government once again to reply to the following points:

(a)  The Committee recalls that section 43 of the Labour Code makes the granting of maternity leave conditional upon the completion of a qualifying period of six consecutive months of service with an employer, which is contrary to the Convention. The Government had indicated previously that, under the terms of section 25 of the Social Security Act, the implementing regulations fix a qualifying period of four months’ contributions for entitlement to maternity cash benefits. It adds that such a qualifying period is necessary to avoid abuse and that it is in conformity with Article 4, paragraph 4, of the Convention. While noting this information, the Committee wishes to emphasize that its comments did not concern the contribution requirements for entitlement to maternity benefit determined by the Social Security Act, but the six months’ qualifying period provided for in section 43 of the Labour Code for the granting of maternity leave. Since the Convention does not authorize any such requirement for entitlement to leave, the Committee hopes that this requirement will be eliminated in the near future when section 43 of the Labour Code is amended.

(b)  The Committee once again recalls that section 43 of the Labour Code does not provide, as does Article 3, paragraph 4, of the Convention, that where confinement occurs after the presumed date, prenatal leave must in all cases be extended until the actual date of confinement, and that the period of compulsory leave to be taken after confinement shall not be reduced on that account. The Committee once again expresses the hope that it will be possible to supplement section 43 of the Labour Code by including a provision to this effect.

Article 4, paragraphs 1, 4 and 8. Cash benefits. The Committee notes that, despite the observations that it has been making for many years, the information contained in the Government’s reports indicate that the employer shall pay the cash benefits to women workers who are entitled to them and who are covered by the social security system. It also notes that the social security fund may guarantee the payment of these benefits where the employer is unable to pay them. The Committee recalls in this connection that the Convention, in Article 4, paragraphs 4 and 8, provides that maternity benefits shall be provided either by means of compulsory social insurance or by means of public funds, and that in no event shall the employer be individually liable for the cost of such benefits due to women employed by him. The Committee therefore hopes that the Government will not fail to take all the necessary measures to bring section 25 of the Social Security Act, No. 13 of 1980, into conformity with the above provisions of the Convention by organizing the provision of cash benefits in a manner that is in accordance with the Convention and by ensuring that in no case shall the employer be individually liable for the cost of such benefits due to women employed by him either directly, by paying at his cost the benefits to which they are entitled, or indirectly by acting in place of the social security fund.

Furthermore, as section 25 of the Social Security Act, No. 13 of 1980, does not contain provisions on the subject, the Committee requests the Government to indicate whether the regulations implementing this Act have been adopted and, if so, to provide a copy. If they have not been adopted, the Committee expresses the firm hope that the regulations implementing the Social Security Act will be adopted in the very near future and will explicitly provide that, in the event of the extension of the length of maternity leave in the circumstances envisaged in Article 3, paragraph 4, of the Convention (error in the presumed date of confinement), the period during which the maternity benefit is provided will be extended for an equivalent period.

Part V of the report form. The Committee requests the Government to provide detailed information on the manner in which the Convention is applied in practice, including, for instance, the total number of women in employment to which the legislation respecting maternity protection is applicable, the number of women workers who have benefited from such protection during the reference period, and relevant extracts from the reports of the inspection services and information on the number and nature of the contraventions reported.

The Committee hopes that the Government will make every effort to take the necessary measures to give full effect to the Convention in the very near future.

[The Government is asked to report in detail in 2004.]