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Maternity Protection Convention, 2000 (No. 183) - Cuba (Ratification: 2004)

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Direct Request (CEACR) - adopted 2023, published 112nd ILC session (2024)

Previous comment

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.

Direct Request (CEACR) - adopted 2013, published 103rd ILC session (2014)

The Committee notes the information provided by the Government in relation to the application of Articles 3 and 6(6) of the Convention.

Article 4(1). Minimum duration of maternity leave. In reply to the Committee’s previous comments on section 8 of Legislative Decree No. 234 of 2003, the Government states that section 8 of the above Decree provides for only 12 weeks of paid leave in exceptional cases of medical error concerning the due date of birth. The normal period of paid leave, however, is 18 weeks, which is longer than the requirements of the Convention. The Committee recalls that the Convention does not allow for any exception to the minimum duration of maternity leave of 14 weeks and once again requests the Government to amend section 8 of Legislative Decree No. 234 in order to give full effect to Article 4(1) of the Convention.

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

The Committee notes the Government’s reply to the comments made previously under Articles 3, 6(2), 8(1) and 9(2), of the Convention, and requests the Government to provide further information on the following points.

Article 3. Health protection for pregnant and breastfeeding workers. (a) In reply to the Committee’s comments, the Government indicates in its report that, where it is impossible to transfer a female worker to another post that is not prejudicial to the normal development of the pregnancy, that worker shall receive a social benefit equivalent to 60 per cent of her salary. The Committee understands that the same rate of 60 per cent is applied to the salary of female workers who have not completed six months’ service as provided for by section 2 of the special provisions of Legislative Decree No. 234. It requests the Government to confirm in its next report whether that is the case.

(b) The Committee notes the Government’s reply that the lists of work not recommended for women of average physical build provided for by section 124 of Decree No. 101/82 issuing the general regulations relating to the Occupational Health and Protection Act could be considered discriminatory and were not therefore drawn up. However, the Committee notes sections 123 and 125 of the above Decree which provide for the adoption of lists of activities and posts which affect the gynaecological system, the reproductive system or the normal development of pregnancy. It would be grateful if the Government would provide, with its next report, copies of the lists drawn up under sections 123 and 125 of Decree No. 101/82, as well as information on the consultations held in that regard.

Article 4, paragraph 1. Minimum duration of maternity leave. In reply to the Committee’s previous comments, the Government indicates that the application of section 6 of Legislative Decree No. 234 on maternity in the case of late childbirth does not affect the granting of the 12-week period of postnatal leave. However, the Committee draws the Government’s attention to the fact that its previous comments concerned section 8 of Legislative Decree No. 234 which limits the maternity leave to the postnatal portion of 12 weeks in the case of childbirth before the thirty-fourth week of pregnancy (thirty-second week for multiple births). As a result, the case envisaged by section 8 of the above Legislative Decree leads to a reduction in maternity leave to 12 weeks in total, whereas the Convention guarantees a maternity leave of at least 14 weeks. The Government is requested to re-examine this matter and to indicate in its next report the measures taken or envisaged to guarantee 14 weeks’ maternity leave in all circumstances, as required under this provision of the Convention.

Article 6, paragraph 6. Maternity benefits out of social assistance funds. The Committee once again requests the Government to provide, with its next report, copies of the documents containing the schedules established by the State Commission for Labour and Social Security and approved by the Council of Ministers which set the rates of continuing social assistance, in accordance with section 128 of Act No. 24 of 1979 on social security.

Direct Request (CEACR) - adopted 2007, published 97th ILC session (2008)

In reference to its observation, the Committee notes with interest that the period of maternity leave provided for by national legislation is 18 weeks and therefore consistent with that recommended by the Maternity Protection Recommendation, 2000 (No. 191). The Committee also notes with interest that the scope of the new Legislative Decree No. 234 of 2003 on maternity includes adoptive parents and introduces paternity leave and parental leave, in accordance with Paragraph 10(1), (3), (4) and (5) of Recommendation No. 191.

Nevertheless, the Committee would be grateful if the Government would provide, in its next report, further information on the following points.

Article 3 of the Convention. Health protection for pregnant or breastfeeding workers. (a) The Committee notes that according to section 2 of Legislative Decree No. 234, where it is impossible to transfer a female worker to another post that is not prejudicial to the normal development of the pregnancy, that worker is entitled to social benefit equivalent to 60 per cent of the average salary she receives in the six months prior to stopping work. The Committee asks the Government to indicate the manner in which this subsistence benefit is calculated when paid to workers who have worked for less than six months before stopping work. There being no mention of this issue in legislative texts, the Government is also requested to indicate whether a transfer to another post, which is possible during pregnancy in the event of a risk to health, is also a right for breastfeeding workers who have returned to work.

(b) The Committee notes that section 125 of Decree No. 101/82 of 1982 issuing the general regulations relating to the Occupational Protection and Health Act provides for the adoption of lists of activities that are prejudicial to the health of the mother or the child. The Government is requested to provide with its next report copies of the lists prepared in this respect and information on the consultations held for this purpose.

(c) The Committee notes that the annex to resolution No. 31/2002 on occupational safety and health contains “general practical procedures for the identification, assessment and monitoring of occupational risk factors”. In so far as the specific purpose of these procedures is to ensure maternity protection, the Committee would be grateful if the Government would specify the manner in which the specific needs of female workers during pregnancy and while breastfeeding are taken into consideration when assessing occupational risks.

Article 4, paragraph 1. Minimum duration of maternity leave. The Committee notes that in the event of childbirth before the 34th week of pregnancy (32nd week for multiple births), the worker loses her entitlement to the prenatal part of her maternity leave, which is then limited to the postnatal part of 12 weeks (section 8 of Legislative Decree No. 234). In so far as the Convention provides for a period of maternity leave of not less than 14 weeks, the Government is requested to indicate, in its next report, the measures taken or envisaged to guarantee 14 weeks of maternity leave in all circumstances, in accordance with this provision of the Convention.

Article 6, paragraph 2. Maternity cash benefits. The Committee notes that the level of the minimum maternity benefit set by section 11, paragraph 2, of Legislative Decree No. 234 seems fairly low (20 pesos a week, approximately 80 pesos a month), particularly when taking into account the minimum wage rate (225 pesos a month). It asks the Government to indicate the manner in which it guarantees the right of all female workers, and particularly atypical female workers, to receive benefits “at a level which ensures that the woman can maintain herself and her child in proper conditions of health and with a suitable standard of living”, in accordance with this provision of the Convention.

Article 6, paragraph 6. Maternity benefits out of social assistance funds. The Committee notes that, according to section 128 of Act No. 24 of 1979 on social security, continuing social assistance benefits are awarded in accordance with the schedules established by the State Commission for Labour and Social Security and are approved by the Council of Ministers. Given that the Convention requires social assistance benefits to be of an adequate level and to allow for the needs of the mother and her child to be met throughout the period of leave provided for in the Convention, namely 14 weeks, the Committee asks the Government to send with its next report the documents containing the schedules pursuant to which these benefits are awarded.

Article 8, paragraph 1. (a) Dismissal of female workers employed on a fixed-term basis. The Committee notes the cases in which a female worker employed on a fixed-term basis for a period of more than six months or for the purpose of carrying out a particular task or piece of work may be dismissed under section 63 of resolution No. 8/2005 issuing the general regulations on labour relations. The Committee asks the Government to indicate in its next report the manner in which it ensures that female workers employed on a fixed-term basis are not dismissed for maternity-related reasons during the protected period. The Government is also requested to indicate whether any measures protecting against dismissal exist in favour of female workers employed for a fixed period of less than six months, which would coincide with one of the periods of protection provided for by the Convention, either pregnancy, maternity leave or breastfeeding.

(b) Remedies afforded in the event of unfair dismissal and burden of proof. The Committee notes that Legislative Decree No. 176 of 1997 on justice at work, referred to by the Government, only seems to contain penalties for disciplinary violations on the part of the worker (section 11 of Legislative Decree No. 176). Consequently, the Committee would be grateful if the Government would indicate the remedies afforded to women who are unfairly dismissed, and the legal provisions establishing the rules relating to the burden of proof in the event of dismissal during the protected period.

Article 9, paragraph 2. (a) Medical examinations for admission to employment. The Committee notes that according to the information submitted by the Government, the purpose of the medical examinations carried out prior to employment, provided for by section 96 of Decree No. 101/82, is not to establish specifically whether a woman is pregnant, but to determine whether, because of her pregnancy, a woman should be transferred to another post in the event that the activity that she is required to carry out presents a risk to her health or that of her child. The Committee believes that in order to achieve greater legal clarity and security, the national laws and/or regulations could be completed with a view to prohibiting, in an explicit manner, the requirement for a pregnancy test or a certificate of such a test when a woman is applying for employment, except in cases where this is required in respect of certain types of work which are considered to present a risk or which are prohibited for pregnant or breastfeeding women.

(b) Compensation and penalties. The Committee notes that while section 29(2) of Legislative Decree No. 246 of 29 May 2007 on the violation of labour, occupational protection and hygiene, and social security legislation lays down penalties for employing women who have not undergone the medical examinations required by law, it does not provide any penalties for requiring a pregnancy test or a certificate of such a test in cases other than those where this is explicitly required by national laws or regulations. The Committee also notes that Legislative Decree No. 176, which is mentioned by the Government in its report, refers only to penalties concerning disciplinary violations on the part of workers. In the light of this, the Committee asks the Government to indicate the penalties applicable where an employer has required a woman applying for employment to undergo a pregnancy test or to produce a medical certificate of such a test other than in cases of work which present a risk or which are prohibited for pregnant or breastfeeding women.

Finally, the Committee asks the Government to provide information on the manner in which the Convention is applied in practice, including, for instance, extracts from official reports or decisions issued by courts of law or other tribunals involving questions of principle relating to the application of the Convention, and particulars on any difficulties encountered in the practical application of the Convention, together with an indication of the number and nature of contraventions reported in respect of the provisions relating to maternity protection and the number and nature of penalties imposed.

Observation (CEACR) - adopted 2007, published 97th ILC session (2008)

The Committee notes the Government’s first report and the adoption of the new Legislative Decree No. 234 of 2003 on maternity. The Committee notes with satisfaction that section 20 of this Legislative Decree ensures the right of breastfeeding women workers to take one or more nursing breaks which are counted as working hours and remunerated accordingly, in accordance with Article 10 of the Convention. The Committee recalls that this matter had been referred to in successive comments within the context of the examination of the application of Convention No. 103. The Committee requests information on the method of implementation of the Legislative Decree and its application in practice.

The Committee has referred to a number of other issues in a request addressed directly to the Government.