Maternity Protection Convention, 1919 (No. 3) - Panama (RATIFICATION: 1958)

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Article 3(d) of the Convention. Nursing breaks. The Committee notes with interest the information provided by the Government in its report regarding the promulgation of Act No. 135 of 23 March 2020, which reforms Act No. 50 of 1995, and defines appropriate conditions for establishing breastfeeding facilities, expanding the entities that compose the National Commission for Promoting Breastfeeding (CONFOLACMA) and establishing further guidelines and conditions to protect, support and promote breastfeeding. The Committee also notes the statistical information regarding the establishment of breastfeeding facilities in 16 workplaces.

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Article 3(c) of the Convention. Maternity benefits provided to women who do not meet the conditions for entitlement under social insurance. In its previous comments, the Committee requested that the Government consider the possibility of extending the “compensation” mechanism by means of a lump-sum benefit, provided for in section 1(14) of Organic Act No. 51 on the Social Security Fund, to pregnant women who do not meet the legal requirements for entitlement to the maternity subsidy provided by the Social Security Fund, so as to relieve employers of the obligation to cover directly the costs of the benefits due to women they employ. In this regard the Committee notes the Government’s indication that the financial benefits provided to women who do not meet the conditions for entitlement to maternity benefit are more favourable than the “compensation” mechanism provided for by Organic Act No. 51 on the Social Security Fund.

Article 3(d). Nursing breaks. In its previous comments, the Committee noted that section 114 of the Labour Code gives women workers nursing their children the choice between 15-minute breaks every three hours or two half-hour breaks a day. In this respect, the Government stated previously that, in practice, the first option is seldom used. The Committee notes with interest the amendment to section 36 of Executive Decree No. 1457 of 30 October 2012, which allows the working time of workers nursing their children to be reduced by one hour at the beginning or end of the day, in addition to other options (four 15-minute breaks or two 30-minute breaks), to improve the application of this provision of the Convention. The Committee requests the Government to provide information on the application of this provision in practice, including statistical information in relation to the same and details about any complaint concerning its application.

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The Committee notes the Government’s reply to its observation of 2009 on Articles 1, 3 and 4 of the Convention.

Article 3(c). Maternity benefits provided to women who do not meet the conditions for entitlement under social insurance. The Committee observes that under section 146 of Organic Act No. 51, the Basic Social Security Fund Act, in order to receive the maternity benefit, fund members must have paid into their individual accounts a minimum of nine monthly quotas in the 12 months preceding the seventh month of pregnancy. For women workers who are not eligible for social security benefits, section 107 of the Labour Code provides that payment of the maternity benefit is to be covered by the employer. The Committee observes, however, that Act No. 51 establishes a “compensation” mechanism (section 1(14)) under which an “economic benefit” is to be provided in a single payment where the requirements for the grant of a pension for the corresponding risk are not met (see provisions on invalidity benefit (section 165) and old-age benefit (section 171)). That being so, the Committee requests the Government to consider the possibility of extending the “compensation” mechanism to pregnant women who do not meet the legal requirements for grant of the maternity benefit by the Social Security Fund, so as to relieve employers of the obligation to cover directly the costs of the benefits due to women they employ.

Article 3(d). Nursing breaks. The Committee observes that section 114 of the Labour Code gives women workers nursing their children the choice between 15 minute breaks every three hours or two half-hour breaks a day. The Committee notes that the Government stated previously that the first option was in practice seldom used, and states in its 2010 report that studies may be conducted to establish which of the two options is the most feasible for women workers in practice. The Committee reminds the Government that in earlier observations, it proposed including a provision in section 114 allowing for working women who are nursing their children a reduction in working time instead of the choice between 15-minute breaks every three hours or two half-hour breaks. The Committee accordingly asks the Government to adopt appropriate measures in the near future to enable nursing mothers to exercise this right in practice.

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The Committee notes the Government’s report received in 2009 replying to its 2008 observation and direct request, as well as the Government’s response received in 2008 replying to the comments made in 2006 and 2007 by the National Federation of Public Employees and Public Service Enterprise Workers (FENASEP).

Article 1 of the Convention. Coverage. In reply to its previous observation soliciting information on the manner in which the provisions relating to maternity protection are applied in practice to women employed in export processing zones, the Government states that at present export processing zones do not exist anymore. Other sources however, indicate that the so-called free trade zones, most notably the Colon Free Zone, are currently operating in Panama (see for example www.dobusinnessinpanama.com). The Committee asks the Government to explain to what extent and in what manner maternity protection (maternity leave, nursing breaks and protection against dismissal) is guaranteed in law and practice to women working in the Colon Free Zone and other free trade zones in Panama.

Article 3, paragraph (c). Maternity benefit provided to women who do not meet the conditions for entitlement under social insurance. In Panama, according to section 107 of the Labour Code, private employers are obliged to pay the benefits or part of the benefits for women employees who do not fulfil the conditions of entitlement to maternity cash benefits from the Social Security Fund. Taking into account that making employers directly liable for the costs of benefits due to their women employees may, as a rule, result in their discrimination on the labour market, the Committee asks the Government to study the possibility of replacing employers’ liability by social security benefits provided out of public funds.

Article 3, paragraph (d). Nursing breaks. Section 114 of the Labour Code gives women workers nursing their children the choice between 15-minute breaks every three hours or two half-hour breaks per day. The Government states that the 15‑minute nursing breaks every three hours are rarely used in practice, but remains silent as to the use of the other option of two half-hour breaks per day. Instead, the report argues that research in different South American countries shows that nursing may affect the health of the mother and child due to the high incidence of pesticides in the mother’s milk. The report indicates, for example, that the use of agrochemicals in the agricultural sector and the substances contained in the textiles in the confection industry may cause chronic effects for nursing women working in these sectors and their newborns. The Committee would be grateful if the Government would supply copies of the studies establishing the presence of toxic substances in maternal milk and state what measures have been taken or are contemplated in order to improve conditions of work in the sectors of activity concerned. The Committee also wishes to emphasize that 15-minute nursing breaks every three hours do not enable effect to be given to Article 3(d) of the Convention. It therefore requests the Government to formulate, in consultation with the social partners and representative organizations of women workers, practical recommendations giving effect to the second option offered by section 114 of the Labour Code which provides, in conformity with the Convention, that every woman worker shall have the right to two half-hour nursing breaks.

Article 4. Employment protection. FENASEP draws attention to numerous cases of the non-renewal of fixed-term contracts of pregnant women or women on maternity leave reported in the public sector. Taking into account the number of such cases brought to the Committee’s attention, and the fact that fixed-term contracts should not be used to circumvent the legislation protecting pregnant women or women on maternity leave, the Committee hopes that all existing procedures including the Bipartite Commission Ministry of Labour and Employment Development (MITRADEL)-FENASEP, would be used in order to investigate and follow up on these cases, and that the Government will provide in its next report information on the measures taken in this respect so as to avoid maternity-based discrimination of women whose fixed-term contracts terminate during the period protected by the Convention.

[The Government is asked to reply in detail to the present comments in 2010.]

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With reference to its observation, the Committee notes that the Government’s report has not been received. It hopes that a report will be provided for examination at its next session and that it will contain full information on the points raised in its previous direct request, which read as follows:

Article 3(c) of the Convention. Maternity benefit provided to women who do not meet the conditions for entitlement under social insurance. In reply to the Committee’s previous comments, while recognizing that the national legislation does not fully comply with the Convention, the Government indicates that the payment to all women workers covered by the Convention of benefits provided out of public funds or by means of a system of insurance, even when the qualifying period laid down by the social security legislation is not fulfilled, would entail substantial expenditure which would not be possible in view of the economic crisis currently affecting the country. The Committee recalls that, by providing for maternity benefits to be provided out of public funds or by means of a system of insurance, rather than payable directly by the employer, this provision is intended to prevent maternity from being a source of discrimination when employing women. It hopes that the Government will be able to re-examine this issue regularly with a view to bringing its legislation into conformity with this provision of the Convention. The Committee requests the Government to indicate the progress made in this respect in future reports.

Article 3(d). The Committee notes that the 15-minute nursing breaks every three hours provided for by section 114 of the Labour Code are not, or are very rarely used in practice by women workers due to the distance between their homes and the workplace. The Committee wishes to emphasize that section 114 of the Labour Code gives women workers nursing their children the choice between 15-minute breaks every three hours or two half-hour breaks per day. Nevertheless, taking into account the difficulties of a practical nature mentioned in the Government’s report for women workers to exercise their right to nursing breaks, the Committee suggests that the Government examine the possibility of supplementing section 114 of the Labour Code with a provision permitting women workers to nurse their children, and for those who so desire, to benefit from a reduction in their working hours in place of their nursing breaks.

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The Committee notes that the Government’s report in reply to its previous observation has not been received. It also notes the information provided in 2006 and 2007 by the National Federation of Public Employees and Public Service Enterprise Workers (FENASEP) reporting cases of the non-renewal of fixed-term contracts of women who are pregnant and on maternity leave in the public sector, and the Government’s reply to these comments. It further notes that new observations made by the above union organization were forwarded to the Government in October 2008. While awaiting the Government’s reply to this communication from the union, and considering the Government’s detailed report containing replies to the Committee’s 2003 observation, the Committee has decided to examine all of this information at its next session and to reiterate its previous comments, which read as follows:

The Government confirms that the Labour Code and the social insurance legislation also apply to women workers employed in export processing zones. The Government’s report also contains statistical information on the number of inspections carried out in the country and the cost of maternity benefits. Nevertheless, the Committee recalls that its previous observation concerned more specifically the manner in which the provisions relating to maternity protection (maternity leave, nursing breaks and protection against dismissal) contained in the Labour Code, as well as those relating to maternity benefits in the Organic Act respecting the Social Security Fund and its regulations, are applied in practice to women employed in export processing zones; it requested the Government to provide, for example, extracts of inspection reports or other official documents, statistics on the number of inspections carried out in export processing zones and the violations reported in the above zones. The Committee therefore trusts that the Government’s next report will not fail to include detailed information on this point and the statistics requested on the number of women employed in export processing zones who have received maternity benefits during the period covered by the report and the amount of such benefits.

A request on certain points is also being addressed directly to the Government.

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Article 3(c) of the Convention. In reply to the Committee’s previous comments, while recognizing that the national legislation does not fully comply with the Convention, the Government indicates that the payment to all women workers covered by the Convention of benefits provided out of public funds or by means of a system of insurance, even when the qualifying period laid down by the social security legislation is not fulfilled, would entail substantial expenditure which would not be possible in view of the economic crisis currently affecting the country. The Committee recalls that, by providing for maternity benefits to be provided out of public funds or by means of a system of insurance, rather than payable directly by the employer, this provision is intended to prevent maternity from being a source of discrimination when employing women. It hopes that the Government will be able to re-examine this issue regularly with a view to bringing its legislation into conformity with this provision of the Convention. It requests the Government to indicate the progress made in this respect in future reports.

Article 3(d). The Committee notes that, according to the Government’s report, the 15-minute nursing breaks every three hours provided for by section 114 of the Labour Code are not, or very rarely, used in practice by women workers due to the distance between their homes and the workplace. The Committee wishes to emphasize that section 114 of the Labour Code gives women workers nursing their children the choice between 15-minute breaks every three hours or two half-hour breaks per day. Nevertheless, taking into account the difficulties of a practical nature mentioned in the Government’s report for women workers to exercise their right to nursing breaks, the Committee suggests that the Government examine the possibility of supplementing section 114 of the Labour Code with a provision permitting women workers to nurse their children, and for those who so desire, to benefit from a reduction in their working hours in place of their nursing breaks.

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In reply to the Committee’s previous comments, the Government confirms that the national legislation, in particular the Labour Code and the social insurance legislation, also applies to women workers employed in export processing zones. The Government’s report also contains statistical information on the number of inspections carried out in the country and the cost of maternity benefits. Nevertheless, the Committee recalls that its previous observation concerned more specifically the manner in which the provisions relating to maternity protection (maternity leave, nursing breaks and protection against dismissal) contained in the Labour Code, as well as those relating to maternity benefits in the Organic Act Social Security Fund and its regulations, are applied in practice to women employed in export processing zones; it requested the Government to provide, for example, extracts of inspection reports or other official documents, statistics on the number of inspections carried out in export processing zones and the violations reported in the above zones. The Committee therefore trusts that the Government’s next report will not fail to include this information and the statistics requested on the number of women employed in export processing zones who have received maternity benefits during the period covered by the report and the amount of such benefits.

A request on certain points is also being addressed directly to the Government.

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Article 3(c) of the Convention. In response to the Committee's previous comments concerning women employees who do not fulfil the conditions of entitlement to maternity benefits under the Social Security Fund, the Government again refers to section 107 of the Labour Code, which obliges the employer to provide the benefits or part of the benefits not covered by the Fund.

The Committee recalls that, according to this provision of the Convention, maternity benefits must be provided either out of public funds or by means of a system of insurance. Under these circumstances, the Committee hopes that the Government will indicate in its next report progress achieved to ensure the application of this provision of the Convention as well as with regard to women who are unable to fulfil the conditions in respect of the qualifying period laid down under section 44 of Legislative Decree No. 14 of 1954.

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The Committee recalls that section 55 of Act No. 25 of 30 November 1992, which lays down a special, comprehensive and simplified system for the establishment and operation of export processing zones, provides that the conditions of employment in export processing zones shall be subject to the common standards contained in the Labour Code, in Act No. 1 of 17 March 1986 and the special laws which are in conformity with the provisions of the above Act No. 25 of 1992.

The Committee noted that, in this respect, the Government's response to its previous comments stated that women employed in export processing zones are covered without exception by the maternity benefit provisions of the Social Security Fund (Legislative Decree No. 14 of 1954). The Committee hopes therefore that, on the forthcoming occasion, for example, of the revision of Act No. 25 of 30 November 1992, a direct reference to Legislative Decree No. 14 of 1954 will be included under section 55 of the said Act. In the meantime, the Committee would request the Government to provide information on the application in practice of the provisions respecting maternity protection (maternity leave, nursing breaks and protection against dismissal) provided for under the Labour Code and the provisions respecting maternity benefits provided for under the Organic Law of the Social Security Fund and its Regulation in respect of women employed in export processing zones by providing, for example, extracts of inspection reports or other official documents, statistics on the number of inspections carried out in export processing zones as well as the violations observed. Please also provide statistics in respect of the number of women employed in export processing zones who have received maternity benefits as well as the amount of these benefits during the period covered by the report.

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Article 3(c) of the Convention. (a) In reply to the Committee's previous comments, the Government states that women workers who do not fulfil the conditions for entitlement to maternity benefits under the Social Security Fund receive medical assistance benefits from the State under the Health Integration Programme in the regions covered by the above programme. The Committee notes this information.

(b) With regard to the provision of maternity cash benefits for this category of women workers, the Government refers to section 107 of the Labour Code, which obliges the employer to provide the benefits or the part of the benefits not covered by the Fund. The Committee once again draws the Government's attention to the fact that according to the Convention the benefits must be provided either by means of a system of insurance or out of public funds. The Committee therefore hopes that the Government will re-examine the matter and that it will indicate in its next report the measures which have been taken or are envisaged to give full effect to the Convention on this point.

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The Committee notes the information supplied by the Government in reply to its previous observation. It notes in particular that Act No. 16 of 6 November 1990 was repealed by Act No. 25 of 30 November 1992 to establish a special, comprehensive and simplified system for the establishment and operation of export zones, section 55 of which provides that the conditions of employment in export zones shall be subject to the common standards contained in the Labour Code, among other legislation.

The Committee requests the Government to state whether women workers employed in export zones are also covered by the maternity benefit provisions of the Social Security Fund (Legislative Decree No. 14 of 1954).

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The Committee notes the observations made in April 1991 by the National Council of Organised Workers (CONATO), and the Government's reply to them.

The Committee notes in particular that the question of employment conditions in the export zones is currently being examined at the Legislative Assembly. It hopes that the Government will not fail to provide detailed information in its next report on the results of the above examination along with copies of any legislation that is adopted regarding working conditions in the export zones. It also asks the Government to provide a copy of Act No. 16 of 1990.

With regard to Act No. 25 of 1990, the Committee refers to its observation on this point under Convention No. 87.

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Article 3(c) of the Convention. In reply to the Committee's previous comments, the Government indicates that, owing to the serious economic crisis prevailing in the country and, in particular, to the precarious financial situation of the Social Insurance Fund, it is not possible for the time being to envisage a reform of the Act respecting the Social Insurance Fund or to use public funds in order to extend maternity benefits, as required by Article 3(c) of the Convention.

The Committee takes note of this information. While appreciating fully the problems, particularly the economic difficulties, facing the country, the Committee expresses the hope that the Government will do its utmost to examine the means of providing maternity cash benefits or any other financial assistance to women employees who do not fulfil the conditions prescribed by the insurance with regard to the qualifying period, in accordance with this provision of the Convention. It wishes to remind the Government that this objective could be attained by compensating the above employees, for example through an assistance scheme. It asks the Government to indicate the progress made in this respect in its next report.