Demande directe (CEACR) - adoptée 2006, publiée 96ème session CIT (2007)

The Committee notes with interest the first report provided by the Government. It notes that the maternity leave established by the national legislation is longer than that envisaged in the Convention – the Labour Code provides for entitlement to 18 weeks of leave, which is the duration advocated by the Maternity Protection Recommendation, 2000 (No. 191). It requests the Government to provide further information in its next report on the following points.

Article 1 of the Convention. The Committee notes that the Law on Equal Treatment of 2003 prohibits any direct or indirect discrimination in employment in the private and public sectors based on age, sexual orientation, disability, racial or ethnic origin, religion or beliefs, and that definitions of direct and indirect discrimination have been incorporated into the 1998 Law on Equal Opportunities for Women and Men. The Committee would be grateful if the Government would provide information in its next report on the manner in which it guarantees in practice the absence of discrimination of any type in the application of the maternity protection scheme with an indication of whether specific action is taken in the context of more general programmes which have an impact or are designed to guarantee the absence of discrimination in this field, in particular with regard to women from the Roma minority and those of foreign origin.

Article 2, paragraph 1. (a) The Committee notes that the Labour Code covers labour relations based on an employment contract and that, by virtue of article 98 of the Code, in the absence of an employment contract, the labour relationship is illegal. As the Convention applies to all employed women, including those in atypical forms of dependent work, the Committee requests the Government to provide information on the atypical forms of dependent work existing in the country and the legal system applicable to them, particularly with regard to the protection of maternity. Please also provide, in accordance with the report form, statistics on the total number of employed women and state whether specific legislative or other measures have been taken or are contemplated in respect of women engaged in atypical forms of dependent work.

(b) Furthermore, the Committee notes that the legal regime covering home work contracts, contracts for household services and contracts for agricultural workers shall, under the terms of sections 115 to 117 of the Labour Code, be established subsequently by the Government. The Committee requests the Government to provide additional information in its next report on the manner in which the women workers referred to above, who are covered by the Convention, are afforded the maternity protection which they are to be guaranteed under the terms of the Convention.

(c) The Committee would be grateful if the Government would provide fuller information in its next report on the inter-relationship between the Law on State Social Insurance of 1991 and the Law on Maternity Protection of 2000, as the personal scope of the two texts appears to cover different categories of workers.

Article 3. The Committee notes with interest that the Labour Code provides that pregnant women, women who have recently given birth or who are breastfeeding, may not be assigned to perform work in conditions that may be hazardous or affect the health of the woman or the child (section 278). It notes that the list of hazardous working conditions and risk factors for pregnant women, women who have recently given birth or who are breastfeeding, was determined by Government Order No. 340 of 19 March 2003. The Committee also notes that a tripartite council, which fulfils an advisory function in relation to labour relations, was established by the Labour Code (section 45). The Labour Code does not specify the legal provisions applicable to the Council, but establishes that it is for the Council to determine its own functions and organization of work. The Committee would therefore be grateful if the Government would provide any decision adopted in this respect. It also requests the Government to indicate whether, as it assumes to be the case, the above tripartite council is, in practice, the body that has to be consulted prior to the adoption of national 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 which involves a significant risk to the mother’s health or that of her child.

Furthermore, as the Office only has a copy of Order No. 340 referred to above in Lithuanian, the Government is requested to provide detailed information with its next report on the activities determined as being hazardous or likely to be so and the methods for the evaluation of risks to health under the terms of the above text.

Article 4, paragraph 4. The Committee notes that the Labour Code does not explicitly establish the compulsory nature of postnatal maternity leave. It notes that, according to the report provided by the Government in 2005 under the European Social Charter (Revised), women may renounce all or part of their maternity leave and that six weeks compulsory postnatal leave is not established. As a result, although the Labour Code guarantees the right to maternity leave, it does not provide that part of postnatal leave must necessarily be of a compulsory nature. The Committee therefore requests the Government to take the necessary measures in this respect since, even though it allows the period of compulsory postnatal leave to be less than six weeks under certain conditions, Convention No. 183 requires there to be a period of compulsory leave after childbirth to protect the health of the mother and that of the child.

Article 6, paragraphs 1 to 5 and 8. The Committee notes that women who are covered by the maternity social insurance scheme are entitled to cash benefits throughout their maternity leave, representing 100 per cent of their previous wage. However, where this wage does not achieve the level of one quarter of the average wage approved by the Government for the year in which pregnancy occurs, the rate of the benefit is calculated on the basis of the latter amount. The Committee would be grateful if the Government would provide information in its next report on the level of the average wage as established by the Government (and the criteria for its adjustment), taking into consideration the requirement set out in the Convention that the level of cash benefits shall, in any case, be such as to ensure that the woman can maintain herself and her child in proper conditions of health and with a suitable standard of living.

Article 6, paragraph 6. The Committee notes that, under the terms of article 10 of the Law on State Benefits to Families Raising Children (3 November 1994, No. I-621), as amended, women who are not eligible for maternity pay under the sickness and maternity insurance scheme, are granted a lump some equivalent to twice the amount of the minimum standard of living (MSL) 70 days before the baby is due. As the information provided by the Government in its report shows that the MSL was fixed most recently in 1998, the Committee requests the Government to provide information on this subject, taking into account the requirement set out in the Convention that the maternity benefits provided out of public funds to women who do not meet the conditions to qualify for social insurance benefits are adequate to meet the needs of the mother and her child throughout the period of leave provided for in the Convention, namely 14 weeks.

Article 6, paragraph 7. The Committee would be grateful to be provided with further information on the types of medical care provided during pregnancy, childbirth and the postnatal period, the number of beneficiaries and the payment of costs in the event of hospitalization.

Article 8. The Committee notes that pregnant women benefit from protection against termination of employment, which may only be lifted under the limited circumstances enumerated in the Labour Code, from the date on which they notify their employer of their pregnancy until one month after the end of their maternity leave (sections 132 and 136 of the Labour Code). Considering that the Convention also provides that the burden of proving that the reasons for dismissal are unrelated to pregnancy or childbirth and its consequences or nursing shall rest on the employer, the Committee would be grateful if the Government would specify the party on whom the burden of proof rests in the event of termination of employment during the protected period and the recourse procedures available to women who are the victims of unjustified dismissal.

Article 9, paragraph 2. The Committee requests the Government to indicate the manner in which effect is given in law and practice to the prohibition set out in the Convention from requiring a test for pregnancy or a certificate of such a test when a woman is applying for employment, except where justified for certain types of work determined in advance.