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Other comments on C183

Observation
  1. 2007
Direct Request
  1. 2023
  2. 2013
  3. 2009
  4. 2007

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In order to provide a comprehensive view of the issues relating to the application of ratified Conventions on maternity protection, the Committee considers it appropriate to examine Conventions Nos 3 and 183 in a single comment.
The Committee duly notes the Government’s indication regarding the publication of Decree-Law No. 56/2021, repealing Decree-Law No. 339 on the maternity of working women and Decree-Law No. 340, both of 2016, amending the special social security schemes and expanding the coverage and level of benefits granted in the context of maternity protection.
Articles 2 and 8(1) of Convention No. 183. Coverage and protection against dismissal for women in atypical forms of dependent work. The Committee notes that section 3 of Decree-Law No. 56/2021 provides that the rights contained in the special legislation relating to maternity protection derive from the working status of the mother. The Committee also notes that, under section 50 of the Labour Code, protection against dismissal or immediate termination of the employment contract is granted to pregnant workers or those on maternity leave on indefinite employment contracts, but not explicitly to working women who are breastfeeding. The Committee requests the Government to provide additional information on the legislative provisions which grant maternity protection, particularly in terms of protection against dismissal during pregnancy, maternity leave and breastfeeding for all categories of women employed, including those on fixed-term contracts and other atypical forms of dependent work.
Article 3. Health protection. Measures to ensure that pregnant or breastfeeding women are not obliged to perform work which is prejudicial to the health of the mother or the child. The Committee notes that section 60 of the Labour Code provides that any pregnant woman who by medical prescription cannot remain in her job because it is deemed prejudicial to her health shall receive the protection prescribed by the specific legislation on maternity. However, the above-mentioned section does not refer to such protection for working women who are breastfeeding. The Committee also notes that Decree-Law No. 56/2021, which regulates maternity protection, does not contain any provisions relating to measures that ensure that pregnant or breastfeeding women are not obliged to perform work which is prejudicial to the health of the mother or the child. The Committee therefore requests the Government to provide information on the measures which allow a pregnant or breastfeeding woman to decide not to perform work which is prejudicial to her health or that of her child (for example, by elimination of a work-related risk, adaptation of working conditions, transfer to another job or paid leave), in accordance with Article 3 of the Convention, including information on the related legislative provisions.
Article 4(1). Minimum duration of maternity leave. The Committee notes the Government’s indication, in reply to its previous comment, that section 5(1) of Decree-Law No. 56/2021 provides that paid maternity leave shall be mandatory, in the pre- and postnatal period, for a duration of 18 weeks, and that section 5(2) provides that the aforementioned period shall comprise six weeks before childbirth and 12 weeks after childbirth. The Committee also notes that, regarding the postnatal period of leave, the legislation does not explicitly refer to the eventuality of childbirth occurring after the presumed date. Recalling that, under Article 4(5) of the Convention, the prenatal portion of maternity leave shall be extended by any period elapsing between the presumed date of childbirth and the actual date of childbirth, without reduction in any compulsory portion of postnatal leave, the Committee requests the Government to indicate whether women workers who give birth after the presumed date continue to benefit from the postnatal leave of 12 weeks provided for in section 5(2) of Decree-Law No. 56/2021.
Article 5. Leave in case of illness or complications. The Committee notes that section 35 of Decree-Law No. 56/2021 provides that pregnant workers who produce a medical certificate attesting to their incapacity for work during pregnancy shall receive 100 per cent of the average basic contribution until the starting date of prenatal leave. The Committee requests the Government to indicate whether the national legislation provides for leave after the maternity leave period in the case of illness, complications or the risk of complications arising out of pregnancy or childbirth, and to indicate the nature and maximum duration of such leave. The Committee also requests theGovernment to provide information on the benefits paid during such leave.
Article 6(6). Adequate benefits out of social assistance funds. The Committee notes that under sections 34(1) and 36(1) of Decree-Law No. 56/2021, for a woman worker to qualify for cash, economic and social benefits, she must have paid contributions to the social security scheme in the 12 months immediately preceding the starting date of the maternity leave, and that where the worker has accumulated less than 12 months of service, the amount of the economic benefit shall be calculated by averaging the actual period of contribution. The Committee notes that sections 108 and 109 of the Social Security Act provide protection out of social assistance funds through benefits in cash, in kind and in services to working mothers who take unpaid leave to take care of children and who, as a result of such leave, are without income. The Committee requests the Government to provide specific information as to whether women who do not meet the requirements for receiving cash maternity benefits under Decree-Law No. 56/2021, and particularly women who perform atypical forms of dependent work, qualify for cash benefits out of social assistance funds established by the Social Security Act, and if they do so qualify, to indicate: (i) the level of such benefits; and (ii) the extent to which they are currently sufficient to guarantee an adequate standard of living for the mother and child.
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