Observation (CEACR) - adoptée 2012, publiée 102ème session CIT (2013)

Convention (n° 103) sur la protection de la maternité (révisée), 1952 - Guatemala (Ratification: 1989)

Autre commentaire sur C103

Observation

Demande directe

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Article 1 of the Convention. Coverage. The Committee notes with interest the extension of the geographical coverage of the sickness, maternity and accident programmes of the Guatemalan Social Security Institute (IGSS) to the departments of Petén, Santa Rosa and El Progreso. The inclusion of the three departments in 2011 completed the process of the extension of coverage to the whole of the national territory. While taking due note of the statistical data provided by the Government in its report, the Committee observes that such data still lack the level of detail required to assess the number and categories of women who are effectively covered by the scheme (in relation to the total number of employed women in the various departments of the country). The Committee therefore wishes to emphasize the importance of statistical tools in developing a baseline with a view to the extension of maternity protection to all the categories of women workers protected by the Convention. The Committee therefore requests the Government to indicate the progress achieved in developing the new statistical system referred to in the report provided in 2008.

Article 3(2) and (3). Compulsory period of maternity leave. The Committee notes the Government’s reply in its report to its request made to legally guarantee the compulsory period of post-natal leave of at least six weeks for all women covered by the Convention and to prohibit the employment of women during their post-natal leave. The Government indicates that the period envisaged in the IGSS regulations exceeds six weeks, as set out in sections 114 and 34, as amended, of Decisions Nos 466 and 468 of the Administrative Board of the IGSS, respectively. The Government adds that in the event of the return to work of a woman before the employer has received notification of the termination of incapacity, the employer is required to notify the Institute within three days; furthermore, in the event that a woman is employed during the post-natal period, the employer shall cover the costs arising out of the unwarranted payment of the allowance, without prejudice to being liable to the penalties envisaged in the Labour Code. The Committee recalls that the compulsory nature of the post-natal leave and the minimum period of leave are protective measures intended to prevent women from resuming work before the end of the six-week period as a result of undue pressure or with a view to material advantage to the detriment of their health. The Committee therefore once again urges the Government to take the necessary measures to guarantee the compulsory nature of the period of post-natal leave, in accordance with the above provisions of the Convention.

Article 4(1). Suspension of benefits. The Committee notes the Government’s indications concerning the absence of cases in which benefits have been suspended on the grounds of the clearly anti-social behaviour of the beneficiary and the fact that, were such a case to arise, benefits would be provided once again when the reasons for their suspension had ceased. The Committee observes that on various occasions the Government has referred to the non-application of the respective rules, although this has not resulted in the repeal of sections 48(c), 149(c) and 71(c) of Decisions Nos 410, 466 and 468 of the Administrative Board of the IGSS, respectively. This reason for the suspension of benefits is not in accordance with the provisions of the Convention as it amounts to an unjustified limitation on entitlement to medical and cash benefits. The Committee once again requests the Government to take the necessary measures to bring the above legislation into conformity with the provisions of the Convention.

Article 4(4), (5) and (8). Employer liability. The Committee notes that, despite the fact that it has been the subject of reiterated requests since 1993, the Government has omitted to address the issue of possible reforms of the national legislation. The Committee recalls the importance of a provision establishing that women who do not fulfil the required conditions to receive social security benefits, are to be granted adequate benefits out of social assistance funds (subject to the means test required for such assistance), and not by the employer, with a view to preventing discrimination in the recruitment of women who are of child-bearing age. The Committee hopes that the Government will take the necessary measures in the near future to bring the national legislation into conformity with the provisions of the Convention.