Direct Request (CEACR) - adopted 1993, published 80th ILC session (1993)

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

The Committee notes the Government's first and second reports. It wishes to draw its attention to the following points.

1. Article 1 of the Convention. The Organic Act of the Guatemalan Social Security Institute (IGSS), section 27, and the Regulations respecting sickness and maternity protection (Order No. 410 of the IGSS), section 3, provide for the progressive extension of the social security scheme to the various geographical areas and categories of workers and employers. According to section 80 of the Regulations, the extension of the scheme will be undertaken by means of separate orders issued by the IGSS to determine the geographical areas and practical arrangements. The Committee requests the Government to supply detailed information, including the texts of the relevant decisions of the IGSS, concerning the extension of the effective coverage of the social security scheme, both in geographical terms to the various departments and regions of the country, and to the various categories of women workers concerned (particularly women employed in the public sector, in agriculture, in transport and domestic workers). Please indicate the measures which have been taken or are envisaged to cover all the women workers covered by the Convention throughout the national territory. Please also supply, in accordance with point V of the report form on the Convention, adopted by the Governing Body, statistics on the number of women workers protected by the sickness and maternity scheme of the IGSS in relation to the total number of women workers covered by the Convention in the various departments of the country. (See also under Article 4, paragraphs 4, 5 and 8, below.)

2. (a) Article 3, paragraphs 2 and 3. Section 152 of the Labour Code, as amended by Decree No. 64-92 of 1992, although providing for entitlement to maternity leave of 30 days prior to confinement and 54 days after confinement, does not explicitly set out the compulsory nature of leave after confinement, as required by this Article of the Convention.

(b) Article 4, paragraph 1. Section 34 of the Regulations respecting cash benefits (Order No. 468 of the IGSS) provides that the duration of the provision of benefits prior to confinement is reduced in the event of premature confinement. The Committee wishes to draw the Government's attention to the fact that in certain cases as a result of such a reduction the total period for which maternity benefit is paid could be less than the 12 weeks laid down in the Convention.

(c) Article 4, paragraphs 4, 5 and 8. The Committee notes that under section 10 of Chapter X of the Organic Act of the IGSS, and while awaiting the complete extension of the social security scheme, women workers who are not covered by the scheme must receive a minimum level of benefit in kind and in cash from their employers, who are obliged in particular to pay their wages during the period of maternity leave, in accordance with section 152(b) of the Labour Code. Furthermore, by virtue of section 23 of the Regulations respecting sickness and maternity protection and section 24 of the Regulations respecting cash benefits, women workers who are covered by the social security scheme but who have not completed the qualifying periods required, continue to receive their wages paid by their employer. The Committee recalls in this respect that by virtue of Article 4, paragraphs 5 and 8, of the Convention, women who fail to qualify for social security benefits shall be entitled to receive adequate benefits out of social assistance funds, and that in no case shall the employer be individually liable for the cost of such benefits due to women employed by him.

(d) Article 6. In accordance with sections 66 and 69 of the Labour Code, the employer may terminate the employment contract of a woman who is on maternity leave at any time if he has just grounds, as set out in section 77. In this context, the Committee is bound to point out that Article 6 of the Convention prohibits, in the same way as section 46 of the Regulations respecting sickness and maternity protection, the giving of notice to a woman during her absence on maternity leave or at such time that the notice would expire during such absence.

The Committee hopes that the Government will indicate in its next report the measures which have been taken or are envisaged in order to bring the legislation into full confirmity with the above provisions of the Convention.

3. Furthermore, the Committee would be grateful if the Government would supply additional information on the following points.

Article 1. Please state whether the Public Service Act is also applicable to women employed in state enterprises and/or whether there are other provisions respecting the maternity protection of this category of women workers.

Article 4, paragraph 1. The Committee notes that section 48 of the Regulations respecting sickness and maternity protection, section 149 of the Regulations respecting medical assistance and section 71 of the Regulations respecting cash benefits authorize the IGSS to suspend the provision of benefits on several grounds, including "the pronounced anti-social conduct" of the woman concerned. Please supply information on the manner in which this provision is applied in practice.

Article 5. The Committee requests the Government to supply the text of the Regulation respecting the use of nursing breaks, of 15 January 1973, to which it refers in its report, and to indicate in particular whether it is applicable to women employed in the public sector.

Article 6. Please state by virtue of which provisions women employed in the public sector are entitled to the protection set out in this Article of the Convention.