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

The Committee notes with interest that in July 2005, an ILO technical assistance mission visited the Libyan Arab Jamahiriya to assist the Government in resolving difficulties in applying ratified social security Conventions, including Convention No. 103. The Committee hopes that with the Office’s assistance, the Government will take the necessary steps to give full effect, in law and in practice, to the provisions of the Convention on which it has been commenting.

Article 1 of the Convention. Scope. The Committee notes that, in its report, the Government again states that the national legislation is in keeping with the Convention in terms of coverage. The Committee points out that since 1982 it has consistently drawn the Government’s attention to the exclusion of certain categories of women workers from the scope of the Labour Code (domestic and similar workers, 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), and has asked the Government to take the necessary steps to extend maternity protection to them. The Committee also noted that there were to be special regulations for some categories of these women workers. Noting that none of the Government’s successive reports has supplied the information requested on this matter, the Committee hopes that the Government will take all necessary measures to meet the Committee’s concerns about the coverage of the Convention and to provide copies of the abovementioned special regulations together with particulars of the manner in which the women workers excluded from the scope of the Labour Code are provided with the protection laid down in the Convention under Article 3 (maternity leave), Article 5 (nursing breaks) and Article 6 (prohibition of dismissal).

Article 2. The Committee notes that, although it has been asked to do so repeatedly since 1987, the Government has not included in its report the information the Committee requested in previous observations, in which it noted that under the terms of section 5 of the Regulation of 1982 on registration, contributions and inspection, 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 once again requests the Government to state the number of non-Libyan officials who are women and the number of any such women who are covered by the social security system.

Article 3, paragraphs 2, 3 and 4. Duration of maternity leave. In its previous comments, the Committee noted that in its report for 2000, the Government stated that the incompatibility between Act No. 13 of 1980 on social security and the 1970 Labour Code has been eliminated in the new draft of the Labour and Employment Code to be submitted to the General People’s Congress for examination and enactment. The Committee also noted that section 67 of the draft provides for maternity leave of 90 days, which may be extended to 100 days where the woman gives birth to more than one child. It further noted that in its report for 2001, the Government no longer made any mention of the new Labour and Employment Code or of progress in examining and enacting it. In its latest report, the Government refers to a draft revision of the Labour Code which provides for maternity leave of 14 weeks (not 12 weeks, as indicated in the report for 2000) extendable to 16 weeks in the event of the birth of more than one child. The Committee hopes that in its next report the Government will not fail to provide a copy of the above draft together with information on its current status, and that it will send a copy of the text once it has been enacted.

The Committee again notes that the Government’s report contains none of the information requested on the other points raised previously. It accordingly draws the Government’s attention once more to the following matters:

(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 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 added 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 points out 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, according to the information the Government has been supplying for many years, employers are required to pay cash benefits to women workers who are entitled to them and who are covered by the social security system, and that the social security fund shall guarantee the payment of these benefits where the employer is unable to pay them. The Committee asked the Government to take all necessary steps to bring section 25 of 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 consistent with the Convention and by ensuring that in no circumstances 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. In its latest report, the Government states that the benefits in question are paid by the compulsory social security system for women workers in the public and the private sectors and for self-employed women who have paid contributions, and by the social security fund for other categories. The Committee notes, however, that the Government’s report contains no information as to the texts on which the above arrangements are based. It hopes that in its next report the Government will provide this information together with copies of any relevant texts.

In its previous comments, the Committee requested the Government to supply information on the adoption of the regulations implementing section 25 of Social Security Act No. 13 of 1980. Since the latest report contains no information on this matter, the Committee again requests the Government to indicate whether these implementing regulations have been adopted and, if so, to provide a copy of them. If not, the Committee again expresses the hope that they will be adopted very shortly and will expressly 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 notes the information supplied by the Government on the number of women who have benefited from maternity protection. It requests the Government to provide detailed information on the manner in which the Convention is applied in practice, including, for example, the total number of women workers to whom the maternity protection legislation applies, the number of them who have benefited from the protection during the reference period, and relevant extracts of reports of the inspection services and information on the number and nature of contraventions reported.

[The Government is asked to report in detail in 2006.]