Direct Request (CEACR) - adopted 2009, published 99th ILC session (2010)

Article 2 of the Convention. Scope. The Government indicates that the Labour Act applies to all workers regardless of the form of the employment relationship and that there is currently no specific legislation in respect of women in atypical forms of dependent work. The Committee would be grateful to be provided with further information as regards the manner in which maternity protection is provided in practice to women workers engaged in home or temporary work or other types of atypical forms of dependent work. Where appropriate, please indicate any practical difficulties affecting these categories of workers or any specific arrangements made with a view to providing maternity protection to such categories of workers.

Further to its request formulated under Convention No. 103 before the ratification of Convention No. 183, the Committee would be grateful if the Government would indicate the measures taken or contemplated for securing the protection provided for by the Convention to: (a) women working in air transport undertakings and handling of goods at airports (not included in the definition of “industrial undertakings” contained in section 2 of the Labour Act) and those engaged in manual transport (specifically excluded from this definition); (b) women domestic workers, whose protection is subject to the adoption of regulations to this effect (section 182 of the Act); and (c) women working at home, who appear to be excluded from social security pursuant to Chapter 9 of Part II of the first annex to the Social Security Act. Furthermore, please specify the regulations applying to women working in postal enterprises and health-care establishments since they are not specifically mentioned in the definition of “commercial undertakings”. Finally, please provide examples of types of work which may come under Chapter 8 of Part II of the first annex to the Social Security Act, as well as the number of women workers excluded from social security pursuant to this provision.

Article 3. Health protection measures. The Government indicates that the Statutory Instruments Nos 37 and 132 of 1999 and 2005, respectively, give force of law to this provision of the Convention and that no specific measures have been adopted in order to give it effect. The Committee wishes to recall that in accordance with this provision each country that ratifies the Convention is required, after consulting the representative organizations of employers and workers, to adopt appropriate measures to ensure that pregnant or breastfeeding women are not obliged to perform work which has been determined by the competent authority to be prejudicial to the health of the mother or the child, or where an assessment has established a significant risk to the mother's health or that of her child. Such measures include, as suggested in the report form, the establishment of, inter alia, a list identifying the types of work determined by competent authorities to be prejudicial to the health of the mother or child; a procedure for carrying out an assessment of the health risks involved and making the results thereof available to the women workers concerned; measures empowering women workers to decide not to perform such work; and the designation of an authority or authorities responsible for adopting the measures called for by this provision of the Convention. In addition, paragraph 6, subparagraph 2, of the Maternity Protection Recommendation No. 191, 2000, further suggests the manner in which effect could be given to this provision of the Convention. The Committee therefore invites the Government to give further consideration to this issue with a view to taking all necessary measures ensuring appropriate health protection to pregnant or breastfeeding women.

Article 6. Cash benefits paid by employers. The Committee understands that women not covered by the Social Security Act or not fulfilling the minimum contribution requirements to receive social security benefits are entitled to receive full pay during maternity leave, subject to having been employed by the same employer for a period of not less than 150 days during the last 12 months. The Committee wishes to point out in this respect that while authorized under certain conditions, the Convention does not consider the individual liability of employers for the cost of benefits paid to women on maternity leave to represent the optimal manner of ensuring income replacement during maternity-related absences. Instead, the Convention considers the provision of benefits through compulsory insurance or public funds to better protect the situation of women on the labour market. It therefore invites the Government to examine the possibility of progressively providing for maternity benefits either by way of compulsory social insurance or public funds and to communicate copies of any actuarial evaluations undertaken in this respect.

Article 6. Medical benefits. The Committee notes the information provided by the Government concerning the number of women who have had access to prenatal and postnatal care in government clinics. It also notes that the medical benefits dispensed by these clinics include prenatal and postnatal care as well as hospitalization. The Committee reiterates its previous requests to the Government to indicate the relevant legal, administrative or regulatory provisions in this respect.

Article 8. Employment protection. In accordance with section 178 of the Labour Act, where a woman is in receipt of maternity allowance under the Social Security Act is absent from her work in accordance with the relevant provisions of the Labour Act, or remains absent from her work for a longer period as a result of illness arising out of her pregnancy or confinement and rendering her unfit for work, no employer may give her notice of dismissal during such absence or at such time that the notice would expire during such absence. The Committee would be grateful if the Government would indicate with its next report the legislative provisions guaranteeing that women may not be dismissed on grounds related to pregnancy or birth and its consequences or nursing also during pregnancy and a period following their return to work. It also requests the Government to indicate whether, in accordance with Article 8 of the Convention, the burden of proving that the reasons for dismissal are unrelated to pregnancy or childbirth and its consequences or nursing rests on the employer.

Article 9. Non-discrimination measures. The Government refers to Section 15 of the national Constitution stating that no person shall be denied the opportunity to earn a living by work which is freely chosen or accepted, whether by pursuing a profession or occupation or engaging in a trade or business, or otherwise. While taking due note of this information, the Committee wishes to stress that this provision of the Convention calls for specific measures to be taken in order to prevent or sanction against maternity-based discrimination both in employment and in access to employment. Such measures include, for example, an explicit prohibition of pregnancy testing or requiring certificates of such tests as well as the establishment of appropriate sanctions. It therefore invites the Government to detail in its next report the measures giving effect to this provision of the Convention.

Article 10. Breastfeeding breaks. The Government states that this provision of the Convention is given force of law. National legislation does not determine the daily arrangements of working time in order to permit women to breastfeed their children. Further to its request formulated under Convention No. 103 before the ratification of Convention No. 183, the Committee requests the Government to take the necessary measures in order to supplement the national legislation so as to effectively enable women to interrupt work in order to nurse their children and to have such interruptions counted as working hours and remunerated accordingly, in accordance with this provision of the Convention.