Demande directe (CEACR) - adoptée 2007, publiée 97ème session CIT (2008)

In reference to its observation, the Committee notes with interest that the period of maternity leave provided for by national legislation is 18 weeks and therefore consistent with that recommended by the Maternity Protection Recommendation, 2000 (No. 191). The Committee also notes with interest that the scope of the new Legislative Decree No. 234 of 2003 on maternity includes adoptive parents and introduces paternity leave and parental leave, in accordance with Paragraph 10(1), (3), (4) and (5) of Recommendation No. 191.

Nevertheless, the Committee would be grateful if the Government would provide, in its next report, further information on the following points.

Article 3 of the Convention. Health protection for pregnant or breastfeeding workers. (a) The Committee notes that according to section 2 of Legislative Decree No. 234, where it is impossible to transfer a female worker to another post that is not prejudicial to the normal development of the pregnancy, that worker is entitled to social benefit equivalent to 60 per cent of the average salary she receives in the six months prior to stopping work. The Committee asks the Government to indicate the manner in which this subsistence benefit is calculated when paid to workers who have worked for less than six months before stopping work. There being no mention of this issue in legislative texts, the Government is also requested to indicate whether a transfer to another post, which is possible during pregnancy in the event of a risk to health, is also a right for breastfeeding workers who have returned to work.

(b) The Committee notes that section 125 of Decree No. 101/82 of 1982 issuing the general regulations relating to the Occupational Protection and Health Act provides for the adoption of lists of activities that are prejudicial to the health of the mother or the child. The Government is requested to provide with its next report copies of the lists prepared in this respect and information on the consultations held for this purpose.

(c) The Committee notes that the annex to resolution No. 31/2002 on occupational safety and health contains “general practical procedures for the identification, assessment and monitoring of occupational risk factors”. In so far as the specific purpose of these procedures is to ensure maternity protection, the Committee would be grateful if the Government would specify the manner in which the specific needs of female workers during pregnancy and while breastfeeding are taken into consideration when assessing occupational risks.

Article 4, paragraph 1. Minimum duration of maternity leave. The Committee notes that in the event of childbirth before the 34th week of pregnancy (32nd week for multiple births), the worker loses her entitlement to the prenatal part of her maternity leave, which is then limited to the postnatal part of 12 weeks (section 8 of Legislative Decree No. 234). In so far as the Convention provides for a period of maternity leave of not less than 14 weeks, the Government is requested to indicate, in its next report, the measures taken or envisaged to guarantee 14 weeks of maternity leave in all circumstances, in accordance with this provision of the Convention.

Article 6, paragraph 2. Maternity cash benefits. The Committee notes that the level of the minimum maternity benefit set by section 11, paragraph 2, of Legislative Decree No. 234 seems fairly low (20 pesos a week, approximately 80 pesos a month), particularly when taking into account the minimum wage rate (225 pesos a month). It asks the Government to indicate the manner in which it guarantees the right of all female workers, and particularly atypical female workers, to receive benefits “at a level which ensures that the woman can maintain herself and her child in proper conditions of health and with a suitable standard of living”, in accordance with this provision of the Convention.

Article 6, paragraph 6. Maternity benefits out of social assistance funds. The Committee notes that, according to section 128 of Act No. 24 of 1979 on social security, continuing social assistance benefits are awarded in accordance with the schedules established by the State Commission for Labour and Social Security and are approved by the Council of Ministers. Given that the Convention requires social assistance benefits to be of an adequate level and to allow for the needs of the mother and her child to be met throughout the period of leave provided for in the Convention, namely 14 weeks, the Committee asks the Government to send with its next report the documents containing the schedules pursuant to which these benefits are awarded.

Article 8, paragraph 1. (a) Dismissal of female workers employed on a fixed-term basis. The Committee notes the cases in which a female worker employed on a fixed-term basis for a period of more than six months or for the purpose of carrying out a particular task or piece of work may be dismissed under section 63 of resolution No. 8/2005 issuing the general regulations on labour relations. The Committee asks the Government to indicate in its next report the manner in which it ensures that female workers employed on a fixed-term basis are not dismissed for maternity-related reasons during the protected period. The Government is also requested to indicate whether any measures protecting against dismissal exist in favour of female workers employed for a fixed period of less than six months, which would coincide with one of the periods of protection provided for by the Convention, either pregnancy, maternity leave or breastfeeding.

(b) Remedies afforded in the event of unfair dismissal and burden of proof. The Committee notes that Legislative Decree No. 176 of 1997 on justice at work, referred to by the Government, only seems to contain penalties for disciplinary violations on the part of the worker (section 11 of Legislative Decree No. 176). Consequently, the Committee would be grateful if the Government would indicate the remedies afforded to women who are unfairly dismissed, and the legal provisions establishing the rules relating to the burden of proof in the event of dismissal during the protected period.

Article 9, paragraph 2. (a) Medical examinations for admission to employment. The Committee notes that according to the information submitted by the Government, the purpose of the medical examinations carried out prior to employment, provided for by section 96 of Decree No. 101/82, is not to establish specifically whether a woman is pregnant, but to determine whether, because of her pregnancy, a woman should be transferred to another post in the event that the activity that she is required to carry out presents a risk to her health or that of her child. The Committee believes that in order to achieve greater legal clarity and security, the national laws and/or regulations could be completed with a view to prohibiting, in an explicit manner, the requirement for a pregnancy test or a certificate of such a test when a woman is applying for employment, except in cases where this is required in respect of certain types of work which are considered to present a risk or which are prohibited for pregnant or breastfeeding women.

(b) Compensation and penalties. The Committee notes that while section 29(2) of Legislative Decree No. 246 of 29 May 2007 on the violation of labour, occupational protection and hygiene, and social security legislation lays down penalties for employing women who have not undergone the medical examinations required by law, it does not provide any penalties for requiring a pregnancy test or a certificate of such a test in cases other than those where this is explicitly required by national laws or regulations. The Committee also notes that Legislative Decree No. 176, which is mentioned by the Government in its report, refers only to penalties concerning disciplinary violations on the part of workers. In the light of this, the Committee asks the Government to indicate the penalties applicable where an employer has required a woman applying for employment to undergo a pregnancy test or to produce a medical certificate of such a test other than in cases of work which present a risk or which are prohibited for pregnant or breastfeeding women.

Finally, the Committee asks the Government to provide information on the manner in which the Convention is applied in practice, including, for instance, extracts from official reports or decisions issued by courts of law or other tribunals involving questions of principle relating to the application of the Convention, and particulars on any difficulties encountered in the practical application of the Convention, together with an indication of the number and nature of contraventions reported in respect of the provisions relating to maternity protection and the number and nature of penalties imposed.