Maternity Protection Convention (Revised), 1952 (No. 103) - Uruguay (RATIFICATION: 1954)

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Article 1 of the Convention. Situation of women workers in the private sector covered by para-public social security institutions. In its previous comments, the Committee noted that section 169 of Act No. 17556 of 2002 had been found unconstitutional, as it deprived women workers in the private sector covered by para-public social security institutions of medical coverage during pregnancy and childbirth, and of the cash benefits during their maternity leave. The Committee further noted that the executive authorities had made commitment to explicitly repeal this provision. The Committee observes that the Government has not provided information on this matter. The Committee once again requests the Government to keep it informed of the explicit repeal of section 169 of Act No. 17556 of 2002.

Article 3(3). The Committee notes with interest the Government’s indication in its report that Act No. 19161, which entered into force on 25 November 2013, increased the number of weeks of compulsory leave covered by the maternity allowance to 14 (section 2), increased the duration of paid paternity leave from three to ten days from January 2016 (section 8) and established a parental care allowance for mothers and fathers (section 12). The Committee notes that, under section 2 of the Act, the beneficiaries shall cease all work six weeks before the date on which delivery is due and may not resume work until eight weeks after that date. The Committee observes that the beneficiaries may alter the prenatal leave period with the authorization of the Social Welfare Bank (BPS) and may in no case have a rest period shorter than 14 weeks. The Committee requests the Government to indicate the provisions of the national legislation setting out that, in the event that women to whom the Convention applies alter their periods of maternity leave with the authorization of the BPS, in all cases they have a minimum period of compulsory leave after confinement of six weeks, as required under Article 3(3) of the Convention.

Article 4(4), (5) and (6). Qualifying period and social assistance benefits. In relation to its previous comment and with reference to Article 4(4) of the Convention, the Committee notes that section 6 of Act No. 19161 of 2013 prescribes that beneficiaries must be up to date with their social security contributions in order to qualify for maternity benefit. In relation to the provisions of Article 4(5) and (6) of the Convention, the Committee requests the Government to indicate whether women who do not fully meet the conditions required, prior to the commencement of maternity leave, to receive two-thirds of their previous earnings are entitled to adequate benefits from public assistance funds, subject to the conditions respecting their means prescribed by public assistance.

The Committee has been informed that, based on the recommendations of the Standards Review Mechanism Tripartite Working Group (SRM tripartite working group), the Governing Body has decided that member States for which the Maternity Protection Convention (Revised), 1952 (No. 103), is in force should be encouraged to ratify the more recent Maternity Protection Convention, 2000 (No. 183) (see GB.328/LILS/2/1). Convention No. 183 reflects a more modern approach to maternity protection. The Committee therefore encourages the Government to follow up the Governing Body’s decision at its 328th Session (October–November 2016) approving the recommendations of the SRM tripartite working group and consider ratifying Convention No. 183, as the most up-to-date instrument in this subject area.

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With reference to its previous comments, the Committee notes the detailed information provided by the Government on the reform of the health system and medical maternity benefits (Article 4(3) of the Convention). The Committee also notes with interest the adoption of Act No. 18868, dated 10 January 2012, which prohibits the requirement of a pregnancy test or a medical certificate attesting that a woman is not pregnant as a condition for the selection process, recruitment, promotion or retention in any job or position, in both the public and private sectors.

Article 4(6) of the Convention. Maternity benefits for women who have not completed 300 days of insurance. The Committee notes the indication that the maternity subsidy for women who have not completed 300 days of insurance can be of a very low level at the beginning of the employment relationship, for which reason the benefit is calculated taking into account the remuneration received during the six months prior to the beginning of maternity leave. The Committee understands that these women workers are entitled to the financial benefit without any waiting period. The Committee requests the Government to confirm that this is the case and to indicate the minimum period of employment required for women who have not completed 300 days of insurance to receive maternity benefit representing at least two-thirds of their earnings prior to the maternity leave. Please also indicate whether women workers whose period of employment does not permit them to receive benefits equivalent to two-thirds of their personal earnings may receive means-tested social benefits, out of social assistance funds, in order to ensure the full and healthy maintenance of these women and their children in accordance with a suitable standard of living.

Article 1. Situation of women workers in the private sector covered by para-public social security institutions. The Committee notes the indication that, since section 169 of Act No. 17556 was found to be unconstitutional which deprived women workers in the private sector covered by para-public social security institutions from medical coverage during the pregnancy and the birth, and from cash benefits during their maternity leave, the executive authorities have undertaken to explicitly repeal this provision. The Government reiterates that these workers currently benefit from a protection scheme similar to that of women workers covered by the general scheme under the terms of Legislative Decree No. 15084, which provides for a family allowance and a maternity subsidy (sections 2 and 11). The Committee requests the Government to keep the Office informed concerning the explicit repeal of section 169 of Act No. 17556.

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The Committee notes that the Government is currently engaged in an extensive process of restructuring the health-care system and that the legislative texts on which the Committee had previously commented have been tacitly repealed. The Committee notes that this reform of the health system is being carried out within the framework of Act No. 18.211 of 5 December 2007 and has already resulted in the creation of the National Health Insurance and the National Health Fund (FONASA). This Act provides for the gradual incorporation of the various private schemes into that Fund. Men and women workers who remain excluded from the new system continue for the time being to receive medical benefits under  private schemes. The categories of workers included in the FONASA may opt for membership of an approved collective medical assistance institution (IAMC) or the State Health Services Administration (ASSE). The Committee invites the Government to keep it informed of the implementation of the new Integrated Health Care System (SNIS) which is intended to guarantee the right to health to all persons resident in the country.

Article 4, paragraph 3, of the Convention.  Medical maternity benefits. Given that the list of medical benefits to be provided to users by health service providers shall be drawn up by the Government, the Committee requests the Government to provide further information in its next report on the medical maternity benefits guaranteed under the new health system, including to women workers who do not have 300 days’ membership. Please indicate the legal and regulatory provisions under which the health service providers approved within the framework of the FONASA are under the obligation, in all cases, to provide medical maternity benefits including, in accordance with Article 4, paragraph 3, of the Convention, prenatal, confinement and postnatal care and hospitalization care where necessary. Please also indicate whether, and under what provisions, women workers covered by the FONASA may make use of the free medical maternity benefits provided under both the IAMC and the ASSE.

Article 1. Situation of women workers in the private sector covered by para-public social security institutions. Referring to its observation of 2005, the Committee notes the Government’s statement that section 169 of Act No. 17.556 of 18 September 2002, which had had the effect of depriving women workers in the private sector covered by para-public social security institutions, of medical coverage in relation to medical care provided during pregnancy and confinement, or cash benefits during maternity leave was declared to be unconstitutional by the Supreme Court of Justice. The Government indicates that, since the above ruling of the Supreme Court, women workers covered by para-public social security institutions are getting the benefit of the same maternity protection scheme as workers covered by the Social Insurance Bank (general scheme). The Committee would be grateful if the Government would provide a copy of the above ruling in its next report and invites it to amend the legislation concerned so as to formally repeal the provision declared unconstitutional.

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With reference to its observation, the Committee requests the Government to provide the necessary additional information on the following points.

Article 4, paragraphs 1, 3, 4 and 5, of the Convention (Medical benefits). In its previous comments, the Committee requested the Government to indicate the manner in which Article 4, paragraph 5, of the Convention, which provides that women who fail to qualify for benefits provided as a matter of right shall be entitled to adequate benefits out of social assistance funds, is applied with regard to women workers in the public sector who are members of a collective medical assistance institution (IAMC). Under the terms of Decree No. 457/988, women workers who are members of an IAMC, who have not completed a qualifying period of 300 days on the date of confinement, do not benefit from the medical care provided by these institutions in relation to confinement, following confinement or in the case of any related complications or hospitalization. In its report, the Government indicates that in practice the above provision is not applicable to IAMCs and that the latter do not in fact require women workers who are pregnant to have completed a minimum of 300 days of contributions to be entitled to maternity care. Although practice may vary from one IAMC to another, they generally charge women who have become members after the beginning of their pregnancy a slight increase in their contribution for the six months following the date on which their pregnancy is confirmed. The Government adds that, in parallel to the IAMCs, the State Health Services Administration (ASSE) provides health care to the whole population of the country if they are not members of an IAMC, subject to a means test. In this respect, Decree No. 179/002 of 21 May 2002 provides that the health card for the mother and child guarantees that, in the absence of comprehensive insurance or the existence of only partial insurance, the women shall benefit from free services provided by the ASSE, including services that are not related to maternity, from the beginning of the pregnancy until the sixth month following confinement. The Committee notes this information. In so far as, under the terms of the texts in force, the care provided by the ASSE is guaranteed for persons who are not covered by comprehensive insurance or only have partial insurance, the Committee would be grateful if the Government would indicate in its next report whether women workers in the private and public sectors, who became members of an IAMC after the beginning of their pregnancy and who have paid fewer than 300 days of contributions at the time of confinement, may benefit, subject to a means test, from free care provided under the health card of the mother and child referred to above. It also requests the Government to provide particulars of the various types of care provided by the ASSE in relation to maternity.

Furthermore, the Committee notes that, while the Government states that the requirement of a minimum of 300 days of membership is not applied in practice, the provision of Decree No. 457/988 which establishes this requirement has been taken up without modification in section 160 of new Decree No. 455/001 of 21 November 2001 issuing regulations governing medical assistance, which unifies within a single text all the provisions determining the rights of the population in relation to medical care. It is also the understanding of the Committee that, under these conditions, this provision of the new text provides that IAMCs are under the obligation to provide the corresponding medical care and hospital care based on cost-sharing by the persons insured. In these circumstances, it requests the Government to provide clarifications on the manner in which this provision of Decree No. 455/001 is applied in practice and to indicate how it is articulated with the provisions of Decree No. 179/002, referred to above, respecting the health card of the mother and child, as the Convention provides that women who fail to qualify for benefits as a matter of right shall be entitled, subject to the means test required for social assistance, to adequate benefits out of social assistance funds.

Article 5. The Committee notes the information provided by the Inter-Union Assembly of Workers - National Convention of Workers (PIT-CNT) concerning the frequent failure to comply with the provisions of national laws and regulations relating to nursing breaks. In this respect, it notes the Government’s indication that, in view of the inherent difficulties in exercising this right, reductions in working hours are sometimes accorded in practice to women who are nursing their child. The Government also refers to certain collective agreements concluded in the country which contain more favourable provisions for women nursing their child than those set out in national laws and regulations, and it also provides short summaries of court rulings involving questions of principle relating to the exercise of the right to nursing breaks. While noting this information, the Committee requests the Government to continue keeping it informed of the manner in which it ensures, in practice, compliance with the right of women workers to be able to nurse their child, on the understanding that the time granted for this purpose must in all cases be counted as working hours and remunerated accordingly, whether such time consists of nursing breaks or a reduction in daily working hours.

Part V of the report form. The Committee notes the statistical data provided by the Government concerning the application of the Convention in practice, as well as extracts from court decisions involving questions of principle relating to maternity protection. The Committee would be grateful if the Government would continue to provide this type of information in future reports so as to clarify the manner in which the Convention is applied in the country.

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The Committee notes the information provided by the Government in its reports in reply to its previous comments, and to the comments made by the Inter-Union Assembly of Workers - National Convention of Workers (PIT-CNT) concerning the application of the Convention. It wishes to draw the Government’s attention to the following point.

Article 1 of the Convention. The Committee notes, from the comments made by the PIT-CNT that, following the adoption of Act No. 17,556 of 18 September 2002, women workers in the private sector covered by para-public social security institutions no longer benefit from medical coverage in relation to medical care provided during pregnancy and confinement, or cash benefits during maternity leave. The workers’ organization indicates that the women workers concerned are essentially employed in insurance enterprises, administrative companies, savings and credit cooperatives and notarial studies. The Committee notes in this respect the Government’s statement that the Ministry of Labour and Social Security sought information from the Social Insurance Bank concerning the number and category of workers who, following the adoption of the above text, have ceased to be covered by maternity benefits. It also notes the Government’s indication that it requested information from para-public funds on the effect of the above Act on their beneficiaries and that it will inform the Committee as soon as possible of the replies received from these institutions. The Committee would therefore be grateful if the Government would indicate in its next report the situation of women workers covered by para-public funds with regard to all the rights guaranteed by the Convention and, if necessary, indicate the measures envisaged to secure for these workers the maternity protection afforded by the Convention.

The Committee is also raising certain other matters in a request addressed directly to the Government.

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The Committee notes the information provided by the Government in its reports in reply to its previous comments. It also notes that the Inter-Union Assembly of Workers-National Convention of Workers (PIT-CNT) has made new comments on the application of the Convention. In particular, according to this organization, certain categories of workers were deprived of maternity protection as a result of the adoption of legislation in 2002. The comments of the PIT-CNT were received by the Office on 6 October 2003 and transmitted to the Government on 20 October 2003. As the Government states that it intends to inform the Committee in the near future of the impact of the above new legislation on the rights of these categories of workers to maternity benefits, the Committee has decided to postpone its examination of all the pending issues until its next session.

[The Government is asked to reply in detail to the present comments in 2004.]

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The Committee takes note of the observations made by the PIT-CNT (Plenario Intersindical de Trabajadores - Convención Nacional de Trabajadores) on the Government’s report, which were received on 14 October 2002. The Committee has decided to postpone its examination of them and of the information contained in the Government’s report in reply to its previous direct request, until its next session. In this connection, the Committee reminds the Government that it may provide information on the PIT-CNT’s comments.

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The Committee notes the information provided by the Government in its report and in particular the elements relative to the application of Article 5 of the Convention. It notes with interest that section 28 of Act No. 16.104 of 23 January 1990 enables a woman public servant who is nursing her child to request a 50 per cent reduction in working time, with no loss of wages.

Article 4(1), (3), (4) and (5).  In its earlier comments, the Committee drew attention to the provisions of section 27 of Decree No. 457/988 of 12 July 1988, under which a woman worker who is a member of a collective medical assistance institution (IAMC), who has not completed a qualifying period of 300 days by the date of confinement, does not receive medical maternity benefits. It requested the Government to indicate how Article 4(5) of the Convention, which provides that women who do not qualify for benefits will receive appropriate benefits out of the Public Assistance Fund, was applied to women workers employed in the public sector who belong to an IAMC. The Committee notes with regret that the Government has supplied no information in this connection in its last two reports. Recalling that the Government had previously stated that the fact of belonging to an IAMC did not prevent women workers in the public sector from receiving medical benefits from the Social Insurance Bank, the Committee requests the Government to provide a copy of the legislative provisions under which these women workers are entitled to medical benefits provided by the Servicio Materno Infantil, administered by the Social Insurance Bank, in particular when they belong to an IAMC and have not completed the qualifying period specified under section 27 of Decree No. 457/988 cited above. It also requests the Government to supply more general information on the manner in which medical maternity benefits are guaranteed to women workers in the public sector and to provide a copy of the relevant legislation.

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The Committee notes the information supplied in the Government's report, and particularly the fact that Decree No. 90/983 of 22 March 1983 was repealed and replaced by Decree No. 457/988 of 12 July 1988 establishing the right of all residents to join the Collective Medical Assistance Institution (IAMC) of their choice.

Article 4, paragraphs 1, 3, 4 and 5, of the Convention. In its previous comments the Committee noted that under section 27 of Decree No. 457/988 referred to above, women workers may not automatically receive medical care in the event of maternity if they have not completed a qualifying period of 300 days by the date of confinement. It asked for information on the way in which paragraph 5 of Article 4 of the Convention, which provides that women who do not qualify for benefits will receive appropriate benefits out of the Public Assistance Fund (paragraph 5), is applied to women workers employed in the public sector who belong to an IAMC.

In its reply the Government states that public employees are entitled to the medical assistance provided by the public services, and supplies the rules on maternity and paediatric care established by the Ministry of Public Health. With regard to the collective agreements between the Social Insurance Bank and private mutual benefit societies, to which the Committee referred previously and which, according to the Government, guarantee that public employees enjoy all their rights as soon as they join, the Government states that they have expired and are being examined with a view to renewal.

The Committee takes due note of this information. It again asks the Government to provide the text of the legal provisions under which women workers in the public sector are entitled, particularly when they have not completed the qualifying period provided for in section 27 of Decree No. 457/988, to the maternity medical assistance provided by the services administered by the Social Insurance Bank, together with copies of the above-mentioned collective agreements as soon as they have been renewed.

Article 5. The Committee notes that under section 28 of Act No. 16.104 of 23 January 1990, a female public employee who is nursing her child may ask for her working day to be reduced by half. Please indicate whether the reduction of the working day is accompanied by a reduction in remuneration. If so, please indicate whether, and under which provisions, a female public employee who continues to work full time is allowed to interrupt her work for the purposes of nursing for one or several periods, such interruptions being counted as working hours and remunerated accordingly, in accordance with this Article of the Convention.

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Article 4, paragraphs 1, 3, 4 and 5. 1. In reply to the Committee's previous comments concerning medical assistance in the event of maternity, the Government indicates that women workers in the public sector may choose between the services provided by the Social Insurance Bank and private collective medical assistance institutions which are governed by the regulations issued under Act No. 15.181 of 18 August 1981. It adds that the fact of being a member of a private mutual benefit society does not exclude the possibility of having recourse to public services. Furthermore, the Government also refers to the fact that many public bodies have concluded collective agreements with private mutual benefit societies so that officials enjoy full rights from their affiliation.

The Committee takes due note of this information. It notes, however, that by virtue of section 27 of Decree No. 457/988 of 12 July 1988 to establish the right of all residents to become members of collective medical assistance institutions, it is provided that women workers cannot enjoy full rights to medical care in the event of maternity unless they have completed a waiting period of 300 days by the date of confinement. In this connection, the Committee points out that Article 4, paragraph 4, of the Convention provides that medical benefits (and indeed, cash benefits) shall be provided either by means of compulsory social insurance or by means of public funds and that in either case they shall be provided as a matter of right to all women who comply with the prescribed conditions. Furthermore, Article 4, paragraph 5, provides that women who fail to qualify for benefits provided as a matter of right shall be entitled, subject to the means test required for social assistance, to adequate benefits out of social assistance funds.

The Committee would therefore be grateful if the Government would supply with its next report: (a) the text of legal provisions providing for the right of women workers in the public sector to enjoy medical assistance in the event of maternity provided by the services administered by the Social Insurance Bank, particularly in cases where they do not meet the conditions concerning the waiting period set out in section 27 of the above Decree No. 457/988; (b) the text of legal provisions setting out the nature of the pre-natal care, care during confinement and post-natal care provided by the services administered by the Social Insurance Bank; and (c) by way of illustration, certain of the collective agreements referred to by the Government which have been concluded by public bodies with private mutual benefit societies.

2. The Committee would be grateful if the Government would indicate the extent to which the provisions of Decree No. 90/983 of 22 March 1983 are still in force, in view of section 54 of Decree No. 457/988, referred to above.