Direct Request (CEACR) - adopted 1995, published 82nd ILC session (1995)

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

1. The Committee notes the reply of the Government in response to the request for information under Articles 1, 5 and 6 of the Convention. It draws the Government's attention to the following points.

2. Article 1 of the Convention. In its previous comments, the Committee had requested detailed information concerning progressive extension of the social security scheme to the various geographical areas and categories of workers and employers, particularly through orders to be issued by the Guatemalan Social Security Institute (IGSS), pursuant to section 27 of the Organic Act of the IGSS, and section 3 of the Regulations (Order No. 410). In its report, the Government does not indicate whether the IGSS has taken steps toward extending coverage under the social security scheme. Furthermore, the statistics supplied in the Government's report, although of a general nature only, indicate that the percentage of the economically active population covered by the social security scheme, which includes maternity protection, had been decreasing until 1992. The Committee would like to stress the importance of extending maternity protection to all of the categories of workers in conformity with the Convention. The Committee again requests the Government to supply detailed information on the measures which are envisaged or have been taken to extend maternity benefit provided by the IGSS throughout the national territory to all women covered by the Convention.

Article 3, paragraphs 2 and 3. In reply to the Committee's previous comments, the Government states in its report that fulfilment of the right to maternity leave is obligatory. The Committee notes this information. It hopes that the Government will take the necessary measures to supplement section 152 of the Labour Code so as to establish expressly the compulsory nature of leave after confinement.

Article 4(1). The Committee notes the Government's statement that no use has been made of 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 benefit, all of which authorize the IGSS to suspend the provisions of benefits on grounds of "pronounced anti-social conduct". In light of this information, the Committee trusts that the Government will have no difficulty amending the above-mentioned regulations to ensure that the Convention is fully applied in this respect.

Article 4, paragraphs 4, 5 and 8. In previous comments, the Committee had pointed out the need to amend the existing legislation to ensure that maternity benefits are paid from the social security scheme and women who fail to qualify for social security benefit have the right to adequate benefits must be paid out of social assistance funds. In no case is the employer to be held liable for payment of maternity benefit. In reply, the Government states that publicly funded institutions provide medical assistance to women workers who are not affiliated to the IGSS; however, the employer is liable to pay the worker's corresponding salary. The Committee notes this information. It emphasizes the importance of ensuring that the employer is not held directly liable for the provision of maternity benefit, in order to prevent discrimination in hiring against women workers of child-bearing age. The Committee again hopes that the Government will take the necessary measures in the near future to ensure that maternity cash benefit is paid by social assistance funds to women workers who have not yet completed the qualifying period of contribution. As to women workers not yet covered by the IGSS, the Committee refers to its comments under Article 1 above.

Article 6. In reply to the previous comments of the Committee, the Government explains that termination of the employment contract of a women who is on maternity leave is permitted under sections 66 and 69 of the Labour Code, if the employer has just grounds, as specified in section 77, and if the employer obtains the authorization of the labour tribunal. The Committee notes this information. It hopes that these provisions will be supplemented so as to prohibit, in accordance with the Convention, 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.