Demande directe (CEACR) - adoptée 2009, publiée 99ème session CIT (2010)

Article 3, paragraphs 2 and 3, of the Convention. Compulsory leave after confinement. With reference to its previous comments which it has been making for a number of years, the Committee regrets to note that the Government has taken no measures to supplement the Labour Code with a provision setting out the compulsory nature of a period of postnatal leave, which shall not be less than six weeks, in accordance with Article 3 of the Convention. It nevertheless hopes that the Government would reconsider this issue which is intended to prevent women workers from being subject to pressure from their employers to resume work after confinement to the detriment of their health or that of their child.

Article 4, paragraph 5. Adequate benefits out of social assistance funds. The Committee notes from the Government’s report that the Act on pensions and benefits provided by the Social Insurance Fund regulates the entitlement conditions, the duration and the rate of cash maternity benefits. In order to be eligible for maternity benefits, a woman needs to have paid insurance contributions during at least 12 months before the beginning of her maternity leave, provided that she has continuously contributed during the last six consecutive months. The report further indicates that cash maternity benefits are paid for four months and that, as of 16 June 2008, the rate of maternity benefit has been increased from 75 to 100 per cent of average monthly earnings during the last 12 months. The Government also refers to the adoption in 2005 of the Act on granting benefits to mothers and children and rendering pecuniary aid for mothers, children and families, which has developed into a universal cash transfer programme financed by the state budget covering all children until the age of 18 years regardless of the mother’s status with respect to insurance. The Committee takes note of this information with interest. It requests the Government to indicate whether the cash transfer programme referred to above has permitted to raise the level of the social assistance maternity allowances paid to women workers who do not qualify for regular maternity benefits paid by way of social insurance, the level of which the Government has previously considered inadequate. Please also supply copies of the newly adopted laws mentioned above.

Article 4, paragraph 3  Medical benefits. The Committee notes the adoption of the third national “Reproductive health” programme for the period 2007–11 aiming to promote sustainable population growth through improved reproductive health and provision of comprehensive, equitable and accessible reproductive health services. The Committee would be grateful if the Government would keep it informed of the practical measures taken in view of implementing this programme, including the information on the nature and scope of the prenatal medical care, care during confinement and postnatal care to which women workers covered by the Convention are entitled. Please also provide a copy of the Health Insurance Act.

Article 6. Dismissals. The Committee notes that the Government’s report does not reply to the comments made in its previous direct request. It is therefore bound to repeat these comments which read as follows:

The Committee notes that section 100 of the Labour Code establishes the principle of the prohibition of terminating the employment of a pregnant woman or a woman with a child under 3 years of age. However, it notes that this provision authorizes termination of employment in certain limited cases of serious fault which it enumerates, whereas the Convention provides for an absolute prohibition for the employer to give a woman notice of dismissal during the period of maternity leave, or at such time that the notice would expire during such absence. While agreeing with the Government that the protection afforded by the Labour Code covers a longer period than that envisaged in the Convention, the Committee recalls that the purpose of this provision of the Convention is to provide greater protection during the absence of the woman worker, thereby protecting her from any discrimination on grounds of maternity. It does not however, for example, oblige an employer terminating her or his activity or detecting a serious fault on the part of a woman employee to maintain the employment contract of a woman worker, despite reasons justifying dismissal, but merely to extend the legal period of notice by means of a supplementary period equal to the time required to complete the absence on maternity leave. The Committee hopes that, in view of the above, the Government will be in a position to re-examine the relevant provisions of the Labour Code so as to prohibit termination of employment during the period protected by the Convention.

Part V of the report form. Application of the Convention in practice. The Committee notes that according to the Confederation of Mongolian Trade Unions (CMTU), the implementation of the legal provisions on maternity protection is unsatisfactory. The CMTU refers to a trade union survey establishing that pregnant women or women workers with young children become victims of harassments at their workplace. It also states that companies undertake layoffs motivated by the economic and financial crisis and targeting, in particular, women who just completed their maternity leave or women with young children. The CMTU indicates that it has recently offered legal assistance in a number of occasions to women with such complaints. The Committee requests the Government to respond to these comments in its next report.