Demande directe (CEACR) - adoptée 2003, publiée 92ème session CIT (2004)

The Committee takes note of the Government’s first report on the application of the Convention and the Government’s response to the comments by the Confederation of Independent Trade Unions of Bulgaria (CITUB). It would be grateful if it would provide the necessary additional information on the following points.

Article 2, paragraph 1, of the Convention. The Committee observes that the Labour Code does not appear to apply to the employment relationships of foreign nationals employed in Bulgaria by foreign companies. It requests the Government to indicate in its next report whether this is indeed the case and, if so, to specify how the protection established in the Convention is applied to this category of women workers.

Article 3. In its observations, the CITUB stresses the need to periodically update the list of jobs which may not be performed by women pursuant to section 307(2) of the Labour Code, which provides that the list is to be updated at least once every three years, whereas the list currently in force dates back to 1993. In its reply, the Government states that a Bill on amendments and supplements to the Labour Code is currently before the National Assembly, and that it envisages, inter alia, the amendment of section 307 of the Labour Code in order to limit the scope of the prohibition on hazardous and arduous work only to employees who are pregnant or are nursing. The Committee notes this information with interest. It requests the Government to indicate in its next report any progress made in this respect and to provide a copy of the new regulations on hazardous or arduous work as soon as they have been adopted.

The Committee further notes that under section 309 of the Labour Code a pregnant woman or a nursing mother must either be reassigned to another job or have her working conditions adapted if the health authorities find that her work is unsuited to her condition. It also notes the Government’s statement in its report that the employer, together with the health authorities, determines the posts and jobs that are suitable for pregnant or nursing women and that section II of the Ordinance on vocational reassignment regulates this matter in greater detail. The Committee would be grateful if the Government would provide the text of the abovementioned Ordinance, together with the information required by item (b) under Article 3 in the report form on the arrangements and procedures for carrying out health risk assessments and the manner in which the results thereof are made available to the women concerned. Please also provide statistics on the number of instances and the circumstances in which the health authorities have had recourse to the provisions of section 309 of the Labour Code.

Article 4, paragraph 4. The Committee notes the provisions on maternity leave set forth in section 163 of the Labour Code. It observes that this provision does not state expressly that postnatal leave is compulsory. Furthermore, under section 7(7) of the Act of 16 September 2003 on protection against discrimination, pregnant women or mothers may waive the protection provided in the legislation. In these circumstances, the Committee would be grateful if the Government would indicate the measures taken or envisaged to incorporate in the national legislation a provision which expressly gives effect to this provision of the Convention, under which with due regard to the protection of the health of the mother and that of the child, maternity leave shall in principle include a period of six weeks’ compulsory leave after childbirth, during which the woman may not be allowed to work.

Article 6, paragraph 3. Pursuant to section 41 of the Obligatory Public Insurance Code, to which section 49(1) of the Code refers, the amount of the daily indemnity is reckoned on the basis of the average daily income for which insurance payments have been made for the six months preceding the occurrence of the contingency. Since there appears to be no qualifying period for maternity cash benefits, the Committee requests the Government to indicate how the benefits are calculated in respect of women workers who have not completed six months’ membership before the beginning of their leave.

Article 6, paragraph 6. The Committee notes that under section 4(2) of the Obligatory Public Insurance Code, women hired by one or more employers for not more than five working days (40 hours) during a calendar month are not entitled to the maternity protection provided under obligatory social insurance. It requests the Government to indicate whether these women workers are entitled, as this provision of the Convention requires, to adequate benefits out of social assistance funds, subject to the means test required for such assistance.

Article 8, paragraph 1. The Committee notes the information supplied by the Government and the provisions of the law that protect women workers against dismissal during the period referred to in this Article of the Convention. It also notes that under section 9 of the Act on protection against discrimination, in proceedings for protection against discrimination, it is for the claimant to prove the facts alleged and for the defendant to prove that the right to equal treatment has not been infringed. The Committee would be grateful if the Government would provide information on how this provision of the Act on protection against discrimination is applied in practice in the event of women being dismissed during the period protected.

Article 9, paragraph 1. The Committee hopes that the Government’s next report will contain information on any measures which may exist to consider maternity leave as a period of service for the determination of the woman’s rights, as recommended in Paragraph 5 of the Maternity Protection Recommendation, 2000 (No. 191).

Article 9, paragraph 2. The Committee notes that under section 1(4) of Ordinance No. 4 of 11 May 1993, a medical certificate is among the documents required for concluding a work contract. It also notes that under section 12(1) and (3) of the Act on protection against discrimination, an employer may not impose gender-related requirements on a candidate for a job, or refuse to employ a candidate on grounds of pregnancy, maternity or raising children. In view of the abovementioned provisions of the Act on protection against discrimination, it is the Committee’s understanding that the medical certificate required for the conclusion of a work contract may not contain information pertaining to pregnancy (unless such information is required in connection with jobs prohibited for pregnant women or nursing mothers or jobs involving health risks for the mother and child). It requests the Government to state whether this is the case and, if it is, to indicate the relevant texts.

Lastly, the Committee would be grateful if the Government would provide, in accordance with the report form, information on the manner in which the Convention is applied in practice, including for example statistics on the total number of women employed, including the number of those in atypical forms of dependent work, such as home work, telework and temporary work; please also provide extracts of official reports or decisions by courts of law or other tribunals involving questions of principle relating to the application of the Convention, information regarding the number and nature of contraventions reported and any other particulars of difficulties encountered in the implementation in practice of the Convention (see under Article 2 and Parts IV and V of the report form).