Observación (CEACR) - Adopción: 2010, Publicación: 100ª reunión CIT (2011)

The Committee shares the conclusions of the Lanka Jathika Estate Workers’ Union (LJEWU) that the application of the Convention is not satisfactory and regrets that no measures have been adopted by the Government in response to the Committee’s previous comments to comply with the provisions of the Convention.

Article 3(3) of the Convention. Maternity leave. Compulsory post-natal leave of at least six weeks. The Government states that a woman worker who is entitled to four weeks’ post-natal leave can nonetheless take six weeks following her confinement if she has not taken two weeks before. The Government also states that it has taken note of the Committee’s concern of the need to establish compulsory post-natal leave of at least six weeks as requested by the Committee. The Committee therefore trusts that the Government’s next report will indicate measures taken to ensure full compliance with these provisions of the Convention.

Article 3(2) and (3). Distinction in the length of maternity leave based on the number of children. In Sri Lanka, maternity leave cannot exceed six weeks after the birth of the third child, whereas the Convention provides for maternity leave of at least 12 weeks which must include a minimum period of six weeks post-natal leave irrespective of the number of births given. The Committee regrets that, notwithstanding the promises made by the Government in its previous report to ensure the same benefits for all female workers, no measures have been taken. The Committee notes that the LJEWU requests the Government to amend the national legislation in this respect. The Committee therefore trusts that the Government’s next report will indicate the legislative measures taken to ensure that full effect is given to this provision of the Convention for all women workers regardless of the number of children.

Article 4(4) and (8). Cash and medical benefits. The Government states that the country is so far unable to provide maternity benefits by means of a compulsory social insurance scheme or out of government funds; cash benefits continue to be provided by the employer. The Government also states that nationals are covered by free medical services provided by the State, including maternal and childcare. Recalling that the employer shall not be individually liable for the payment of maternity cash benefits, the Committee hopes that, in its next report, the Government will be in a position to indicate measures taken or envisaged towards ensuring that maternity cash benefits are provided by means of compulsory social insurance or out of public funds.

Article 4(1) (in conjunction with Article 3(4), (5) and (6)). Entitlement to cash benefits during supplementary leave. The Committee notes the reply of the Government stating that, in the event of delayed confinement or sickness resulting from pregnancy or confinement, a woman worker may take supplementary leave without pay and that female employees in the public service can take their own unutilized leave. The Committee recalls that, according to Article 4(1) of the Convention, any extension of maternity leave resulting from the application of Article 3(4), (5) and (6) must qualify for cash benefits. The Committee notes that the Government has taken note of this matter but that no action has so far been undertaken to amend the law. The Committee therefore expresses the hope that the Government will, in the very near future, take all the necessary measures to fully apply these provisions of the Convention.

Article 1(1). Scope of coverage. Domestic and agricultural workers. The Government indicates that, due to constraints with regard to enforcement and especially for the reason that they are not covered by the maternity benefit laws, female domestic workers and subsistence agricultural workers still do not benefit from the protection guaranteed by the Convention. The Committee recalls that, in the previous report, the Government promised to undertake measures to cover, inter alia, female domestic workers in private households, wage-earning women working at home, as well as agricultural workers. The Committee would be grateful if the Government would indicate the progress made in this respect in its next report.

Article 1(4). Application of the Convention to women workers on plantations. In reply to the Committee’s previous comments, the Government indicates that most estates ceased to apply alternative maternity benefits specified by the Maternity Benefits Ordinance No. 32 of 1939. Since the alternative maternity benefits scheme is now not in operation, action would be taken in consultation with the constituents to repeal the relevant provisions. However, no policy decisions have yet been taken in this regard. The Committee once again hopes that such decisions will soon be taken in order to bring the legislation into conformity with existing practice in the country and eliminate any differences between the maternity benefits granted to workers on plantations and those granted to other workers.

Article 5. Nursing. The Committee trusts that the Government will, in the very near future, take measures in order to amend the Shop and Office Employees Act No. 19 of 1954 so as to provide for interruptions of work for the purpose of nursing to be counted as working hours and remunerated accordingly.

Article 6. Protection against dismissal during maternity leave. The Committee again expresses the hope that in its next report the Government will indicate the measures taken or envisaged to amend the Establishment Code so as to ensure protection for public employees both against dismissal and the receipt of a notice of dismissal during the period of maternity leave.

[The Government is asked to reply in detail to the present comment in 2011.]