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

The Committee notes the information supplied by the Government in its report. In its previous comments, the Committee noted with interest that in July 2005, an ILO technical mission visited the Libyan Arab Jamahiriya to assist the Government in resolving difficulties in applying ratified social security Conventions including Convention No. 103. It expressed the hope that with the ILO’s assistance, the Government would be able to take the necessary steps to give full effect, in law and in practice, to the provisions of the Convention on which the Committee had been commenting for many years.

Article 1 of the Convention. Scope of application. Since 1982, the Committee has been consistently drawing the Government’s attention to the need to adopt measures in order to extend the scope of the Labour Code to certain categories of women workers who are excluded from it, in particular 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 had asked the Government to take the necessary steps to extend maternity protection to them. In its last report, the Government states that the Social Security Act (Act No. 13 of 1980) does not exempt these categories of women workers from its scope and explains that this text applies to all insured persons.

While duly noting this information, the Committee is bound to reiterate that its comments did not refer to Act No. 13 on social security but to section 1 of the Labour Code, which excludes the abovementioned categories of women workers from its scope. It also notes that the Government’s report does not contain information regarding the possible adoption of special regulations concerning these categories of women workers, which was mentioned previously by the Government. The Committee therefore notes with regret that the Government’s successive reports have not supplied the information requested on this matter. The Committee requests the Government to take all necessary measures to meet the Committee’s concerns about the coverage of the Convention, while providing detailed information on the way in which 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. Equal treatment for foreign employees. In its previous comments, the Committee 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. In its last report, the Government indicated that the number of foreign women workers in the country in 2005 was 8,713 and that they have expatriate employment contracts and are subject to the social security system. While noting this information, the Committee requests the Government to state in its next report whether the relevant laws and regulations have been amended so as to provide for compulsory affiliation of foreign women workers to the social security system and to send a copy of the relevant statutory provisions, if any.

Article 3, paragraphs 2, 3 and 4. Duration of maternity leave. In its observation of 2005, the Committee had recalled and reiterated its previous comments that although the Social Security Act provides for the payment of benefits in cash for three months, the Labour Code only provides for maternity leave of 50 days. In its previous observation, the Committee had also noted the Government’s statement in its report for 2000 that the incompatibility between Act No. 13 of 1980 on social security and the 1970 Labour Code has been eliminated in the draft of the new Labour and Employment Code which was to be submitted to the General People’s Congress for examination and enactment. The Committee also noted that section 67 of the draft provided for maternity leave of 90 days, which may be extended to 100 days where the woman gives birth to more than one child. However, no further mention was made of the draft Labour and Employment Code by the Government in its report for 2001. In its 2004 report, the Government referred to a draft Labour Code, revision of which provides for maternity leave of 14 weeks extendable to 16 weeks in case more than one child is born. The Committee had requested a copy of the new draft of the Labour Code. However, in its last report, the Government has again stated that it will send a copy of the revised Labour Code once it has been enacted. The Committee therefore once again requests the Government to supply information in its next report concerning enactment of the said draft aimed at harmonizing the provisions of the Labour Code with those of the Social Security Act, so as to ensure that women workers are entitled to the benefits set forth in the Convention. It also hopes that the revised Labour Code will take account of the issues previously raised by the Committee, which read as follows:

(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 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. For many years, including in its observation in 2005, the Committee has been drawing the Government’s attention to the need 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 brief response to the Committee’s observation in this context, the Government has merely referred to cash benefits provided, inter alia, for the birth of a child under the Social Security Act. The Committee therefore reiterates its earlier observation that the Government should state in its next report the measures taken with a view to giving full effect to this provision of the Convention. Furthermore, given the lack of information in this regard, the Committee trusts that the Government will not fail to indicate in its next report whether the regulations implementing section 25 of Social Security Act No. 13 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 that the Government’s report does not contain any information on this point. It again 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 women workers who have benefited from the protection during the reference period, and also supply relevant extracts of reports of the inspection services together with statistics on the number and nature of contraventions reported.