Direct Request (CEACR) - adopted 2000, published 89th ILC session (2001)

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

The Committee notes the information supplied by the Government in its last report. It also notes the comments sent by the Workers’ Union of Guatemala and the Government’s reply to them.

Article 1 of the Convention.  The Committee notes from the statistics supplied by the Government in its report that the number of workers belonging to the Guatemalan Social Security Institute (IGSS) increased slightly in 1998, although the proportion of the economically active population covered by the social security scheme, which includes maternity protection, remains stable. The Committee again stresses the importance of extending maternity protection through social security to all women workers covered by the Convention. In this connection, it asks the Government to send information on the measures taken by the IGSS to extend the coverage of the social security scheme to all departments and regions of the country and to all categories of workers (see also under Article 4, paragraphs 4, 5 and 8, below). The Committee also asks the Government to continue to provide statistics on the scope of the social security scheme and the number of women wage earners covered by the IGSS sickness‑maternity scheme in relation to the total number of women workers protected by the Convention.

Article 3, paragraphs 2 and 3.  In reply to the Committee’s previous comments, the Government states that in order to be entitled to maternity benefits the beneficiary must actually rest and abstain from all gainful work for as long as she receives benefits. The Committee takes note of this information. It nonetheless considers that, to avoid all ambiguity, section 152 of the Labour Code should be supplemented in order to make express provision for the compulsory nature of postnatal leave to ensure that a woman worker may not be authorized to work for a period of at least six weeks after confinement, in accordance with these provisions of the Convention.

Article 4, paragraph 1.  In reply to the Committee’s previous comments on the possibility of suspending the payment of benefits in the event of "clearly antisocial behaviour" by the beneficiary (section 48 of the Regulations on sickness and maternity protection, section 149 of the Regulations on medical assistance and section 71 of the Regulations on cash benefits), the Government states that, although such cases are rare, they warrant suspension of payment of the benefits and the IGSS cannot therefore repeal the relevant regulatory provisions. The Government adds that authority for repealing these provisions lies not with the Government but with the IGSS. The Ministry of Labour and Social Welfare has nonetheless drawn the IGSS’s attention to the Committee’s comments and requested it to explore the possibility of repealing the provisions in question. The Committee takes note of this information. It asks the Government to indicate in its next report the measures that have been taken to repeal these provisions in order to give full effect to the Convention on this point.

Article 4, paragraphs 4, 5 and 8.  In its previous comments, the Committee stressed the need to amend the legislation in force which allows the employer to be required to bear the cost of maternity benefits for women workers who are not yet covered by the social security scheme (Chapter X, section 10 of the Basic Act respecting the IGSS) and women workers who are members of the social security scheme but have not completed the requisite qualifying period (section 23 of the Regulations on sickness and maternity protection and section 24 of the Regulations on cash benefits). The Government states that, because the social security scheme extends neither to all workers nor to the whole territory, many women workers are not covered by the IGSS maternity benefits and the State ensures the medical coverage of such workers out of public assistance funds. However, these funds cannot as yet pay maternity benefits. The Government considers that, for the time being, the employer’s liability is still the only means of providing maternity benefits for women workers who are not protected by the IGSS. The Committee takes note of this information and hopes that the Government will continue to take all necessary steps to extend the coverage of the IGSS to the entire national territory and to all women wage earners protected by the Convention, so that, in accordance with Article 4, paragraph 8, of the Convention, employers are not liable for the cost of the maternity benefits payable to the women they employ. Furthermore, the Committee reminds the Government of the need to envisage adopting measures whereby women who are members of the IGSS, but fail to qualify for benefits provided as a matter of right, receive benefits out of public assistance funds. Please provide information on any progress made in this regard.

Article 6.  In reply to the Committee’s previous comments, the Government states that under section 46 of the Regulations on sickness and maternity protection, employers may not terminate the work contracts of their employees for as long as the latter receive sickness or maternity benefits. At the end of their incapacity for work, certified by the IGSS, workers must return to their former job or be assigned to an equivalent one with the same remuneration. While noting this information, the Committee is of the view that it would be desirable to align the provisions of the Labour Code (section 151) with those of section 46 of the above Regulations, in order to avoid all ambiguity in the legislation and because not all women workers are affiliated to the IGSS and so do not benefit from the protection ensured by section 46 of the abovementioned Regulations. It hopes that the Government will reconsider this point in the light of the above comments and the provisions of Article 6 of the Convention under which it is unlawful for an employer to give notice of dismissal to a women 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. The Committee asks the Government to provide full information on the measures taken or envisaged to ensure that this provision of the Convention is properly applied.