Demande directe (CEACR) - adoptée 2005, publiée 95ème session CIT (2006)

Article 3, paragraphs 2 and 3, of the Convention. In its previous comments, the Committee emphasized the need to supplement the national legislation to establish the compulsory nature of postnatal leave during a period of no less than six weeks following confinement. The Government indicates in its last report that section 152 of the Labour Code establishes such compulsory leave during the four weeks preceding confinement and the eight weeks following confinement. While taking due note of this information, the Committee is bound to note that, in its current wording, section 152 of the Labour Code is confined to establishing a right to leave by providing that a woman worker shall benefit from leave paid at the rate of her wage for the 30 days prior to confinement and the 54 days which follow it. This provision does not explicitly establish the compulsory nature of postnatal leave for a period of not less than six weeks following confinement. It does not therefore appear be such as to prevent a woman worker who so wishes from returning to work during the period of postnatal leave. The Committee wishes to recall in this respect that this minimum period of six weeks compulsory postnatal leave envisaged by the Convention constitutes a protection measure intended to prevent a woman from returning to work before the completion of this period to the detriment of her health and that of her child. Under these conditions, the Committee trusts that the Government will have no difficulty in amending section 152 of the Labour Code so as to establish the explicit guarantee for women who have given birth of a period of compulsory postnatal leave of not less than six weeks during which they may not return to work and no employer may employ them.

Article 4, paragraph 1. In reply to the Committee’s previous comments concerning the possibility of suspending the provision of benefits in the event of "clearly anti-social behaviour" of the beneficiary (section 48 of the Regulations on sickness and maternity protection, section 149 of the Regulations on medical assistance and section 71 of the Regulations on cash benefits), the Committee regrets to note that the Government confines itself to indicating that the Guatemalan Social Security Institute (IGSS) has not examined the possibility of repealing these provisions, which therefore remain applicable. The Committee notes this information and trusts that the Government will take all the appropriate measures in the near future to repeal the above provisions and therefore to improve the effect given to the Convention in this respect.

Article 4, paragraphs 4, 5 and 8. In its previous comments, the Committee requested the Government to make every effort to amend the national legislation, under which the employer may be required to bear the cost of maternity benefits for women workers who are not yet covered by the social security scheme (Chapter X, section 10, of the Basic Act respecting the IGSS) and for women workers who are covered by the social security scheme but have not completed the requisite qualifying period (section 23 of the Regulations on sickness and maternity protection and section 24 of the Regulations on cash benefits). The Committee notes that the Government’s report does not provide any new information on this subject. Under these conditions, although aware of the current difficulties in covering the cost of maternity benefits out of public assistance, the Committee is bound to hope that the IGSS will soon undertake, as the Government invited it to do previously, the necessary actuarial studies so as to obtain all the necessary information with a view to bringing national law and practice progressively into full conformity with the Convention. Please provide copies of the actuarial studies referred to above. (See also the observation that the Committee is making concerning Article 1 of the Convention.)

Article 6. In reply to the Committee’s previous comments, the Government indicates that section 46 of the Regulations on sickness and maternity protection, under which employers cannot terminate the contract of employment of their employees while they are in receipt of sickness or maternity benefits, is in accordance with section 151(c) of the Labour Code, which prohibits the termination of the employment of women workers who are pregnant or nursing. While noting this information, the Committee observes that the protection against dismissal guaranteed by these two texts concerns two distinct periods: maternity leave, on the one hand, and pregnancy and the period during which a woman worker who has returned to work nurses her child, on the other. In this respect, with a view to avoiding any ambiguity in the law, and taking into account the fact that all women workers are not affiliated to the IGSS and do not therefore benefit from the protection afforded by section 46 of the above Regulations, the Committee considers that it would be appropriate to include in section 151(c) a provision affording protection against dismissal during the period of maternity leave. It therefore once again requests the Government to re-examine this matter in light of the above comments and Article 6 of the Convention, under the terms of which it is not lawful for an employer to give notice of dismissal to a woman who is absent from work on maternity leave or at such a time that the notice would expire during such absence. The Committee requests the Government to provide full information on the measures adopted or envisaged to give full effect to this provision of the Convention.