Demande directe (CEACR) - adoptée 2005, publiée 95ème session CIT (2006)

With reference to its observation, the Committee requests the Government to provide the necessary additional information on the following points.

Article 4, paragraphs 1, 3, 4 and 5, of the Convention (Medical benefits). In its previous comments, the Committee requested the Government to indicate the manner in which Article 4, paragraph 5, of the Convention, which provides that women who fail to qualify for benefits provided as a matter of right shall be entitled to adequate benefits out of social assistance funds, is applied with regard to women workers in the public sector who are members of a collective medical assistance institution (IAMC). Under the terms of Decree No. 457/988, women workers who are members of an IAMC, who have not completed a qualifying period of 300 days on the date of confinement, do not benefit from the medical care provided by these institutions in relation to confinement, following confinement or in the case of any related complications or hospitalization. In its report, the Government indicates that in practice the above provision is not applicable to IAMCs and that the latter do not in fact require women workers who are pregnant to have completed a minimum of 300 days of contributions to be entitled to maternity care. Although practice may vary from one IAMC to another, they generally charge women who have become members after the beginning of their pregnancy a slight increase in their contribution for the six months following the date on which their pregnancy is confirmed. The Government adds that, in parallel to the IAMCs, the State Health Services Administration (ASSE) provides health care to the whole population of the country if they are not members of an IAMC, subject to a means test. In this respect, Decree No. 179/002 of 21 May 2002 provides that the health card for the mother and child guarantees that, in the absence of comprehensive insurance or the existence of only partial insurance, the women shall benefit from free services provided by the ASSE, including services that are not related to maternity, from the beginning of the pregnancy until the sixth month following confinement. The Committee notes this information. In so far as, under the terms of the texts in force, the care provided by the ASSE is guaranteed for persons who are not covered by comprehensive insurance or only have partial insurance, the Committee would be grateful if the Government would indicate in its next report whether women workers in the private and public sectors, who became members of an IAMC after the beginning of their pregnancy and who have paid fewer than 300 days of contributions at the time of confinement, may benefit, subject to a means test, from free care provided under the health card of the mother and child referred to above. It also requests the Government to provide particulars of the various types of care provided by the ASSE in relation to maternity.

Furthermore, the Committee notes that, while the Government states that the requirement of a minimum of 300 days of membership is not applied in practice, the provision of Decree No. 457/988 which establishes this requirement has been taken up without modification in section 160 of new Decree No. 455/001 of 21 November 2001 issuing regulations governing medical assistance, which unifies within a single text all the provisions determining the rights of the population in relation to medical care. It is also the understanding of the Committee that, under these conditions, this provision of the new text provides that IAMCs are under the obligation to provide the corresponding medical care and hospital care based on cost-sharing by the persons insured. In these circumstances, it requests the Government to provide clarifications on the manner in which this provision of Decree No. 455/001 is applied in practice and to indicate how it is articulated with the provisions of Decree No. 179/002, referred to above, respecting the health card of the mother and child, as the Convention provides that women who fail to qualify for benefits as a matter of right shall be entitled, subject to the means test required for social assistance, to adequate benefits out of social assistance funds.

Article 5. The Committee notes the information provided by the Inter-Union Assembly of Workers - National Convention of Workers (PIT-CNT) concerning the frequent failure to comply with the provisions of national laws and regulations relating to nursing breaks. In this respect, it notes the Government’s indication that, in view of the inherent difficulties in exercising this right, reductions in working hours are sometimes accorded in practice to women who are nursing their child. The Government also refers to certain collective agreements concluded in the country which contain more favourable provisions for women nursing their child than those set out in national laws and regulations, and it also provides short summaries of court rulings involving questions of principle relating to the exercise of the right to nursing breaks. While noting this information, the Committee requests the Government to continue keeping it informed of the manner in which it ensures, in practice, compliance with the right of women workers to be able to nurse their child, on the understanding that the time granted for this purpose must in all cases be counted as working hours and remunerated accordingly, whether such time consists of nursing breaks or a reduction in daily working hours.

Part V of the report form. The Committee notes the statistical data provided by the Government concerning the application of the Convention in practice, as well as extracts from court decisions involving questions of principle relating to maternity protection. The Committee would be grateful if the Government would continue to provide this type of information in future reports so as to clarify the manner in which the Convention is applied in the country.