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Maternity Protection Convention (Revised), 1952 (No. 103) - Guatemala (RATIFICATION: 1989)

Referring to its observation, the Committee is obliged once again to draw the Government's attention to the following points:

Article 1 of the Convention. The Government indicates that it has extended the coverage of the social security scheme to more than half of the departments in Guatemala. The Committee notes this information. It observes, however, that, according to the new statistics provided by the Government, the proportion of the economically active population covered by the social security scheme, which includes maternity protection, continued to decrease in 1996; in addition, in 1996 the number of members also decreased in relation to 1995. Given the importance which it attaches to extending maternity protection through social security, so as to cover all the women workers protected by the Convention for the whole of the territory, the Committee invites the Government to provide, in its next report, detailed information on the measures taken in this regard.

Please also continue to provide statistics on the scope of social security, in particular on the number of women wage-earners (including those working at home) covered by the sickness-maternity scheme of the Guatemalan Social Security Institute in relation to the total number of women workers (excluding those who are self-employed).

Article 3, paragraphs 2 and 3. In its previous report the Government stated that respect for the right to maternity leave is compulsory. The Committee trusts that the Government will not experience any difficulties in supplementing section 152 of the Labour Code in order to make express provision for the compulsory nature of postnatal leave and to ensure, in accordance with these provisions of the Convention, that for a period of at least six weeks after confinement a woman worker may not be authorized to work.

Article 4, paragraph 1. The Government stated previously that section 48 of the Regulations respecting sickness and maternity protection, section 149 of the medical assistance Regulations and section 71 of the Regulations respecting cash benefits, authorizing the IGSS to suspend the payment of benefits in the case of "marked antisocial behaviour" by the beneficiary, were not applied. Consequently, the Committee trusts that the Government will, in the near future, repeal these provisions so as to give full effect to the Convention in this regard.

Article 4, paragraphs 4, 5 and 8. In its previous comments, the Committee emphasized the need to amend the legislation in force which allows the cost of maternity benefits to be charged to an employer. The Committee recalls that under Article 4, paragraphs 4, 5 and 8, of the Convention cash benefits shall be provided either by means of compulsory social insurance or by means of public funds. Women who fail to qualify for benefits provided as a matter of right shall be entitled to adequate benefits out of social assistance funds. In addition, in no case shall an employer be individually liable for the cost of maternity benefits, since this might discourage him from employing women of child-bearing age. The Committee trusts that in the near future the Government will take the necessary measures to guarantee the full application of these provisions of the Convention. As regards the women workers who are still not covered by the social security scheme, the Committee invites the Government to refer back to its comments on Article 1 above.

Article 6. The Committee has noted the new provisions of section 151 of the Labour Code. In particular, it notes that under paragraph (c) it is forbidden for an employer to dismiss women workers who are pregnant or are nursing mothers, except where proof can be provided of reasonable grounds for dismissal constituted by a serious dereliction of contractual duty by a woman wage-earner, in accordance with section 77 of the Code. In this case, an employer must seek prior authorization from the courts. According to the court rulings provided by the Government, the Committee observes that courts ensure that this procedure has been observed and also verify the grounds for dismissal.

While noting the guarantees which exist in legislation and in practice to ensure that women workers cannot be dismissed without just cause during pregnancy or while they are nursing mothers, the Committee recalls that under Article 6 of the Convention it shall not be lawful for an employer to give notice of dismissal to a woman absent from work on maternity leave, or to give her notice of dismissal at such a time that the notice would expire during such absence. Consequently, the Committee invites the Government to provide any information on the measures taken or envisaged to ensure that this provision of the Convention is fully applied.

[The Government is asked to report in detail in 1999.]