Solicitud directa (CEACR) - Adopción: 1993, Publicación: 80ª reunión CIT (1993)

1. Article 3(a), (b) and (c) of the Convention. (a) With reference to its previous comments, the Committee notes with interest the Government's statement that it is examining the possibility of issuing regulations under section 34 of Act No. 50 of 1990 amending section 236 of the Labour Code, in order to provide for compulsory postnatal leave of at least six weeks, in accordance with Article 3(a) of the Convention. The Government also states that, as a rule, the medical certificate attesting incapacity for work which gives entitlement to maternity leave takes effect from the date of confinement, which enables women to take their full maternity leave of 12 weeks after confinement. The Committee therefore hopes that the Government will have no difficulty in completing the national legislation by introducing a provision which expressly prohibits women workers from working for a period of six weeks after their confinement.

(b) With regard to the need to make legal provision for the extension of prenatal leave when the confinement takes place after the estimated date, in accordance with Article 3(c) of the Convention, the Committee notes from the Government's report that the usual practice adopted by physicians in special situations prior to confinement (complications arising from pregnancy) is to declare the woman concerned unfit for work for the requisite number of days. The Committee again expresses the hope that when the above-mentioned regulations are issued under section 34 of Act No. 50 of 1990, the Government will not fail to bring the national legislation into full conformity with the Convention on this point.

(c) The Committee recalls that section 236 of the Labour Code, as amended (and section 16 of Decree No. 770 of 1975 respecting health and maternity insurance, as amended by Decree No. 960 of 12 April 1991), provides that women may reduce their maternity leave to 11 weeks by ceding the remaining week to their spouse or companion so that he can provide them with the necessary care during confinement and in the initial post-confinement phase. In its report, the Government states that since such a reduction of maternity leave is optional and women are free to resort to it or not, this provision is not at variance with the Convention. While noting that the reduction of maternity leave is purely voluntary, the Committee is bound to point out that if a woman cedes one week of her maternity leave to her spouse during the initial post-confinement phase, this could, in certain cases, reduce her postnatal leave to less than the compulsory six weeks prescribed by the Convention. It therefore hopes that an appropriate solution will be found to this problem when the regulations of section 34 of Act No. 50 are adopted.

The Committee asks the Government to report on progress made in the matters referred to above.

2. With reference to its earlier comments, the Committee notes that, in the view of the Civil Service Administrative Department, section 34 of Act No. 50 of 1990, under which maternity leave of 12 weeks also applies to women workers in the public sector, tacitly amends section 19 of Legislative Decree No. 3135 of 1968 and section 33 of Decree No. 1848 of 1969 with regard to the length of maternity leave in the public sector. The Committee hopes that when the legislation is next reviewed these provisions will be brought formally into line with section 34 of Act No. 50 so as to avoid all ambiguity.