Direct Request (CEACR) - adopted 2019, published 109th ILC session (2021)

Maternity Protection Convention, 2000 (No. 183) - Peru (Ratification: 2016)

The Committee notes the Government’s first report.

The Committee notes the observations of the Autonomous Workers’ Confederation of Peru (CATP), communicated with the Government’s report. The Committee also notes the observations of the CATP received on 2 September 2018, and the Government’s reply to these observations.

Article 3 of the Convention. Health protection. Breastfeeding women. The Committee notes the allegation by the CATP that the legal texts referred to by the Government in its report (Act No. 28048 of 2003 on the protection of pregnant women engaged in work that endangers their health and/or the normal development of the embryo and the foetus, and its Regulations; and Act No. 29783 of 2011 on occupational safety and health, and its Regulations; and Ministerial Decision No. 374-2008-TR) refer to pregnant women and cannot therefore apply to breastfeeding women. The Committee notes the Government’s reply, and observes that the laws referred to establish the protection envisaged in this Article of the Convention for pregnant women, and that section 3 of Presidential Decree No. 009-2004-TR provides that this measure may be extended by individual or collective agreement until the end of the breastfeeding period, in view of the risks that can be transmitted to the newborn child through breast milk. The Committee requests the Government to indicate other measures taken or envisaged to ensure that breastfeeding women are not obliged to perform work which has been determined by the competent authority to be prejudicial to the health of the mother or the child, or where an assessment has established a significant risk to the mother’s health or that of her child.

Article 4(4). Minimum period of compulsory leave after childbirth. The Committee notes the information provided by the Government that by Act No. 30367 of 2015, the prenatal and postnatal leave periods were increased from 45 to 49 days (section 1 of Act No. 26644 of 1996, as amended by Act No. 30367 of 2015). The Committee notes that section 1 of Act No. 26644 of 1996, as amended, also provides that all or part of the prenatal leave may be deferred and added to the postnatal leave, at the discretion of the pregnant worker. The Committee requests the Government to indicate how it is ensured that the maternity leave period includes a period of six weeks’ compulsory leave after childbirth.

Article 5. Leave in case of illness or complications. The Committee requests the Government to indicate whether the national legislation provides for leave before or after the maternity leave period in the case of illness, complications or risk of complications arising out of pregnancy or childbirth, and to indicate the nature and the maximum duration of such leave.

Article 6(5). Conditions to qualify for cash benefits. The Committee notes the Government’s indication that the maternity allowance is the amount of cash to which women insured through the social security health system (EsSALUD) are entitled as compensation for loss of earnings resulting from childbirth and the needs to care for the newborn child where, among other conditions, they have paid contributions for three consecutive or four non-consecutive months during the six calendar months prior to the month in which the allowance begins. The Committee requests the Government to indicate how it is ensured that the conditions to qualify for cash benefits can be satisfied by a large majority of the women to whom the Convention applies, including those engaged in non-standard forms of dependent work, and to indicate the number of women to whom the conditions set out in national legislation apply.

Article 6(6). Benefits out of social assistance funds. The Committee notes the allegation by the CATP that maternity benefits are only provided to women insured through the EsSALUD contributory system, which excludes the most vulnerable women workers in the country. The Committee requests the Government to indicate the manner in which it is ensured that, where a woman protected by the Convention does not meet the conditions to qualify for cash benefits, she is entitled to adequate benefits out of social assistance funds, subject to the means test required for such assistance.

Article 6(7). Medical benefits. The Committee requests the Government to indicate whether the medical benefits that should be guaranteed to all women protected under the Convention include prenatal, childbirth and postnatal care, as well as hospitalization care when necessary.

Article 8(1). Employment protection and non-discrimination. The Committee notes the Government’s indication that section 29 of the single consolidated text of Legislative Decree No. 728, the Labour Productivity and Competitiveness Act of 1997, provides that any termination of employment motivated by pregnancy, childbirth and its consequences or nursing shall be null and void if the termination occurs at any time during the pregnancy or the first 90 days after childbirth, where pregnancy is assumed to be the basis for termination if the employer provides no evidence of a just cause for termination. The Committee also notes that section 6 of Act No. 30709 of 2017, which prohibits wage discrimination between men and women, prohibits the employer from terminating or failing to renew the employment contract on grounds related to the fact that women workers are pregnant or nursing. The Committee notes that the CATP reports a possible absence of application in practice of this provision of the Convention and alleges that there are many legal and administrative complaints demonstrating the violation of this right. The Committee requests the Government to provide information on any court rulings setting aside dismissals on grounds of pregnancy, childbirth and its consequences, or nursing.

Article 9(1). Non-discrimination in employment. The Committee notes the Government’s indication that Act No. 26772 of 1997 provides that employment offers and access to educational training facilities shall not impose requirements that constitute discrimination or that undermine or impair equality of opportunity or treatment. The Committee requests the Government to indicate the measures that ensure that maternity does not constitute grounds for discrimination, not only in access to employment, but also in employment, and the measures adopted to give effect to the provisions of this Article of the Convention, including such reparations and sanctions as may be deemed appropriate.