Demande directe (CEACR) - adoptée 2004, publiée 93ème session CIT (2005)

The Committee notes the information contained in the Government’s first report. It wishes to draw its attention to or receive additional information on the following points.

1. Article 3, paragraph 1, of the Convention. Section 17(3)(a) of the Employment Act of 2000 provides that in order to qualify for a grant of maternity leave, a female employee must have been employed for at least 12 months by the employer from whom she requests such leave. In view of the fact that the Convention does not allow any condition relating to a minimum period of employment for entitlement to maternity leave, the Committee requests the Government to indicate the measures taken or envisaged to bring section 17(3)(a) of the Employment Act into conformity with the Convention on this point.

2. Article 3, paragraph 3. The Committee notes that the period of maternity leave established by section 18 of the Employment Act can be modified where the employee so desires. It therefore requests the Government to indicate the measures adopted or envisaged to ensure that, in accordance with this provision of the Convention, a part of the maternity leave of no less than six weeks shall be taken after confinement.

3. Article 3, paragraphs 5 and 6 (in relation with Article 4, paragraph 1). Please indicate the provisions of laws or regulations giving effect to this Article of the Convention respecting the granting of appropriate leave in case of illness arising out of pregnancy or confinement and the corresponding cash benefits (with regard to the nature of such benefits, see also under point 4 below).

4. Article 4, paragraphs 1, 3, 4, 6, 7 and 8. The Committee requests the Government to provide detailed information on the provisions of the National Insurance Act and its implementing regulations providing for maternity benefit in cash, and particularly on their implementation in practice. The Committee recalls in this respect that, according to these provisions of the Convention, maternity benefits have to be provided either by means of compulsory social insurance or public funds. Furthermore, where cash benefits are provided, as appears to be the case in the Bahamas, under a compulsory social insurance system, and are determined on the basis of previous earnings, they shall be at a rate of not less than two-thirds of the woman’s previous earnings taken into account for the purpose of computing benefits.

Moreover, the Committee would be grateful if the Government would provide explanations regarding the coexistence of maternity benefit paid in the context of the national insurance system (see, in this respect, section 20(1)(c) of the National Insurance Act of 1972, as amended and sections 34 and 11 of the National Insurance (Benefits and Assistance) Regulations of 1974, as amended and the maternity leave paid for by the employer (section 17 of the Employment Act)). Indeed, section 38 of the Regulations only addresses the relation between maternity benefit provided by the insurance and maternity leave paid by the employer under an agreement, but not the statutory maternity benefit provided for by section 17 above.

5. Article 4, paragraphs 1 and 3. Please indicate whether, and if so under which provisions, medical benefits are provided in the event of maternity in accordance with these provisions of the Convention.

6. Article 4, paragraph 5. Please indicate whether benefits paid out of social assistance are provided to women who fail to qualify for maternity benefits because they do not fulfil the qualifying conditions set out in section 35 of the National Insurance (Benefits and Assistance) Regulations.

7. Article 5. The Committee notes from the information contained in the Government’s report that, despite the fact that the Employment Act is silent on the question of nursing periods, women workers are afforded rest periods which can be and are used for this purpose, which has prevented any disputes. The Committee recalls in this respect that the nursing pauses envisaged by this provision of the Convention have to be prescribed by national laws or regulations or, in accordance with the law, by collective agreement, and that such pauses must be distinct from normal breaks. The Committee therefore hopes that it will be possible to supplement the Employment Act so as to provide explicitly for interruptions of work for the purpose of nursing which are counted as working hours and remunerated accordingly.

8. Article 6. The Committee notes that section 21(1) of the Employment Act provides for protection against dismissal in case of maternity, including during the period of leave. However, it notes that this protection, which covers a longer period than that envisaged by the Convention, is not applicable where the woman has committed serious default or gross negligence amounting to abandonment of duty. The Committee recalls in this respect that the Convention does not authorize the dismissal of a woman worker during maternity leave in certain special or exceptional circumstances considered by law to constitute a legitimate ground for dismissal. It therefore hopes that the Government will be able to re-examine the situation and take the necessary measures to ensure that the protection set out in subsection 1(b) of section 21 is not affected by subsection 2(a).

9. The Committee requests the Government to provide information on any order or regulation adopted under section 3(2) of the Employment Act and under section 12(2) of the National Insurance Act. Please also provide a copy, where appropriate.

10. The Committee notes that, under section 18 of the Employment Act, the minimum duration of maternity leave is 12 weeks. In this respect, the Committee ventures to suggest that the Government might examine the possibility of extending this period to 13 weeks in order to align it with the period of maternity benefit envisaged under section 36 of the National Insurance (Benefits and Assistance) Regulations.