Direct Request (CEACR) - adopted 2000, published 89th ILC session (2001)

The Committee notes the detailed report sent by the Government, and the information supplied in reply to its previous comments.

1.  With regard to the national policies adopted in accordance with Article 3 of the Convention, the Committee notes with interest Decree No. 1907 of 3 November 1998 enacting Convention No. 156 into national law and providing that it must be observed and given effect. It also notes the Government’s statement that the measures taken to give effect to the Convention apply to all branches of economic activity and categories of workers, without any distinction or discrimination, in both the public and private sectors. It also notes the various legislative texts establishing equality, which had been brought to its attention previously. With reference to paragraph 59 of its 1993 General Survey on workers with family responsibilities, the Committee recalls that it is essential that the national policy should be designed not only to eliminate all discrimination against workers with family responsibilities in law and practice, but that active measures should be taken to promote the principle of equality of opportunity and treatment. The Committee would therefore be grateful to be provided with information on other measures that are indicative of the national policy, such as documents on general policies, programmes and objectives which give effect to the principle set out in the Convention.

2.  Articles 4 and 5.  The Committee notes with interest Act No. 19.591, published in the Official Journal of 9 November 1998, which amends the Labour Code concerning the conditions for entitlement to a crèche, by establishing that the threshold of 20 women under contract which gives rise to the obligation for employees to install or finance crèches shall be considered to apply to each enterprise and not each establishment. According to the report, the entitlement of working mothers to crèches is thereby facilitated, since an enterprise with various establishments may not meet the threshold of 20 women in each establishment, but may employ more than 20 women in the enterprise in total, and thereby be under the obligation to install or finance crèches for all women workers who are mothers of children under 2 years of age. The Committee requests information on the impact of this measure, that is whether it has had the effect of the establishment of a greater number of crèches and how many. The Committee also notes that the Office of the Comptroller General of the Republic issued interpretative opinion No. 8931 of 15 March 1999 broadening the right to crèches and extending it to officials in the public sector. Please indicate the number of crèches established pursuant to the above opinion.

3.  The Committee also suggests that consideration be given to extending this measure to working fathers with children under 2 years of age. The Convention applies to men and women with family responsibilities. Furthermore, these provisions could give rise to the undesired effect that enterprises recruit men rather than women with a view to reducing expenditure on crèches in the event of reaching the threshold of 20 women workers. Please also provide information on the law and practice in relation to workers, both men and women, with children over 2 years of age in relation to the establishment of childcare services and facilities in accordance with Paragraphs 24-26 of the Workers with Family Responsibilities Recommendation, 1981 (No. 165).

4.  The Committee also notes with interest that Act No. 19.591, referred to above, grants maternity protection to women working in private houses, who were previously excluded from such legal protection, and that a new final paragraph has been added to section 194 of the Labour Code providing that employers may not make the continuation of employment conditional on the existence or absence of pregnancy, nor require a certificate or any examination to ascertain whether or not a woman worker is pregnant. The Committee also notes circular No. 13, of 29 January 1999, of the Labour Directorate issuing instructions to labour inspectors concerning the application of Act No. 19.591. The Committee would be grateful if the Government would provide information on the results of the inspections undertaking pursuant to the above circular.

5.  Article 6.  The Committee notes that the Women’s National Service (SERNAM) has taken various types of action to disseminate information on the real situation and the changing roles of men and women in the family and at work, including three studies and three booklets. One of the studies is entitled "Analysis of enterprise experience of improving the compatibility between working and family life" and the others examine public opinion on the priority themes of the SERNAM and on childcare systems. Furthermore, 5,000 copies of a booklet on Convention No. 156 have been reprinted and 20,000 copies have been printed of the booklet "Shared responsibilities - A new deal for the family". With reference to paragraph 90 of the General Survey, the Committee requests information on the extent to which these materials have been disseminated, with an indication for example of whether they have been distributed to employers and workers at the national level with a view to improving understanding by the public of the principle set out in the Convention and of the problems of workers with family responsibilities. The Committee would be grateful if the Government would include copies of the studies and booklets referred to with its next report.

6.  Article 7.  With reference to its previous comments, the Committee notes the legal provisions referred to by the Government in its report, including Act No. 19.611, published in the Official Journal on 16 June 1999, guaranteeing full legal equality between men and women and the right of individuals to participate in the opportunities of national life on an equal footing. Nevertheless, the Committee notes that the report does not provide the information requested on the measures taken in practice in the field of vocational guidance and training. Recalling the examples of measures given in paragraph 5 of its previous direct request, the Committee once again requests information on the measures which have been adopted or are envisaged to give effect to Article 7 of the Convention in practice.

7.  Article 8.  In its previous comments, the Committee recommended the amendment of the second paragraph of section 195 of the Labour Code, which explicitly provides that fathers do not enjoy the employment protection set out in sections 201 and 174 of the Labour Code. Nevertheless, the Committee had previously noted that, although section 195 grants maternity benefits to working fathers in the event of the mother’s death, it explicitly states that fathers do not enjoy the same protection from dismissal as that afforded to mothers. Furthermore, section 195 explicitly states that the rights afforded to mothers under that provision may not be waived. While noting the Government’s statement that, by virtue of sections 159 and 160 of the Labour Code, respecting termination of the employment contract, no worker may be dismissed on the grounds of their family situation, the Committee nevertheless notes that the explicit exclusion of working fathers from the protection afforded by section 195, paragraph 2, to working mothers is not in conformity with the Convention. According to paragraph 29 of the General Survey, it would be legitimate to take measures aimed at women, provided that men are not formally barred from access to such measures should they find themselves in the same circumstances. The Committee therefore once again recommends the Government to amend this provision with a view to establishing, also in this respect, equality of treatment in working life between men and women with family responsibilities. The Committee had also requested the Government to consider establishing protection in its labour legislation against the termination of the employment relationship in the circumstances envisaged in sections 199 and 200 of the Labour Code. These relate to leave when the state of health of a child under 1 year of age requires care at home on grounds of serious illness and for the care of a child under 6 months of age when guardianship or care of the child has been legally granted. The Committee once again urges the Government to consider introducing protection into its legislation in relation to the circumstances envisaged in sections 199 and 200 above, in accordance with Article 8 of the Convention.

8.  Article 11.  Please indicate the means by which the participation of employers’ and workers’ organizations is ensured in devising and applying measures designed to give effect to the provisions of this Convention.