Maternity Protection Convention, 2000 (No. 183) - Bulgaria (Ratification: 2001)

Direct Request (CEACR) - adopted 2014, published 104th ILC session (2015)

The Committee notes the comments made by the Confederation of Independent Trade Unions in Bulgaria (KNSB/CITUB), as well as the information provided by the Government concerning the application of Article 2(1) of the Convention (scope of application) and Article 9(1) (inclusion of the period of maternity leave in the period of service). It also notes the Law of 19 January 2012 amending and supplementing the Labour Code which introduces a new provision concerning the right of employees after maternity leave, childbirth, adoption and parental leave.

Article 3 of the Convention. Health protection. The Committee once again requests the Government to indicate whether the ordinance concerning hazardous or arduous types of work has been adopted by the Minister of Labour and Social Policy and the Minister of Health and, if so, to provide a copy. The Committee once again requests the Government to indicate, in accordance with point (b) under Article 3 of the report form, the manner in which the results of the assessment of health risks are made available to the women concerned and to provide statistics on the number of cases and the circumstances in which the health authorities have invoked the provisions of section 309 of the Labour Code concerning transfers to other appropriate work.

Article 4(4). Compulsory postnatal leave. The Committee notes that the legislation does not mention compulsory postnatal leave. It notes however that section 163(4) and (5) mention compulsory leave of 42 days if the child is stillborn or in the cases of adoption, placement in a fully public-financed childcare institution and death. Please indicate the measures adopted or envisaged to ensure that in every case a period of compulsory postnatal leave of at least six weeks, in accordance with these provisions of the Convention, is required.

Article 8(1). Prohibition of dismissal during pregnancy and maternity leave. The Committee notes that the grounds for dismissal of pregnant women or women in an advanced stage of IVF treatment provided for by section 333 of the Labour Code could be considered excessively broad, thus undermining the protection of women workers (in particular when the post occupied by the employee should be released to reintegrate an illegally dismissed employee who was previously holding this post, when the employee is objectively unable to fulfil her employment contract, or for disciplinary reasons). The Government indicates however that the burden of proving that the dismissal of the pregnant worker is lawful is borne by the employer. The Committee asks the Government to specify the relevant national provisions concerning the burden of proof in case of dismissal during the protected period, as well as to provide information on the number of dismissals of pregnant women registered by the labour inspectorate and the grounds specified in those cases.

Article 9(2). Requirement of a medical certificate for the conclusion of an employment contract. The Committee once again requests the Government to indicate whether the medical certificate, which is included on the list of documents required for the conclusion of a labour contract, under the terms of section 1(4) of Ordinance No. 4 of 11 May 1993, contains information relating to pregnancy (unless where such information is required for recruitment to work that is prohibited for pregnant or breastfeeding women, or the work involves a risk to the health of the woman and child).

Direct Request (CEACR) - adopted 2013, published 103rd ILC session (2014)

The Committee notes that the Government’s report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its previous direct request, which read as follows:

Repetition

Article 2(1). Scope of application. With reference to its previous comment, the Committee notes that, according to the Government’s report, a draft amendment to section 10 of the Labour Code, extending the application of the Labour Code to foreign nationals employed in foreign companies in Bulgaria, has been submitted to the National Assembly. The Committee requests the Government to indicate in its next report the progress achieved in the adoption of this draft text.

Article 3. Health protection. Further to its previous comment, the Committee notes the amendment of section 307 of the Labour Code adopted in 2004, which limits the prohibition concerning hazardous or arduous types of work, the list of which is to be defined by an ordinance of the Minister of Labour and Social Policy and the Minister of Health, in accordance with paragraph 3 of this Article to pregnant women and breastfeeding mothers. The Committee requests the Government to indicate whether this ordinance has been adopted and, if so, to provide a copy.

The Committee notes the information provided by the Government on the arrangements and procedures for the evaluation of risks to the health of pregnant and breastfeeding women, including the extract from the Ordinance on their occupational reassignment. The Committee requests the Government to indicate, in accordance with point (b) under Article 3 of the report form, the manner in which the results of the assessment of health risks are made available to the women concerned and to provide statistics on the number of cases and the circumstances in which the health authorities have availed themselves of the provisions of section 309 of the Labour Code.

Article 4(1) and (4). Length of maternity leave, compulsory postnatal leave. The Government indicates in its report that, under the terms of section 163(1) of the Labour Code, as amended in 2004 and 2006, the length of maternity leave has been increased from 135 days to 315 days. Please indicate the measures adopted or envisaged to ensure a period of compulsory postnatal leave of at least six weeks, in accordance with these provisions of the Convention.

Article 8(1). Prohibition of dismissal during pregnancy and maternity leave. Under the terms of section 9 of the Protection against Dismissal Act, after the person claiming to be the victim of discrimination proves the facts, the defendant has to prove that the right to equal treatment has not been infringed. The Committee requests the Government to explain the manner in which this provision is applied in practice in the light of Article 8(1) of the Convention, under which the burden of proving that the reasons for dismissal are unrelated to pregnancy or childbirth and its consequences or nursing shall rest on the employer.

Article 9(1). Inclusion of the period of maternity leave in the period of service. In reply to the Committee’s previous comment, the Government indicates that, according to national law, maternity leave is considered as a period of service. The Committee would be grateful if the Government would specify the relevant national provisions.

Article 9(2). Requirement of a medical certificate for the conclusion of an employment contract. The Committee once again requests the Government to indicate whether the medical certificate, which is included on the list of documents required for the conclusion of a labour contract, under the terms of section 1(4) of Ordinance No. 4 of 11 May 1993, cannot contain information relating to pregnancy (unless where such information is required for recruitment to work that is prohibited for pregnant or breastfeeding women, or the work involves a risk to the health of the woman and child).

The Committee further notes the adoption of the Law on amendments and Supplements of the Labour Code on 15 December 2011 which amends section 167 in relation to maternity leave and establishes certain labour rights of employees who return to work after maternity leave.

Direct Request (CEACR) - adopted 2008, published 98th ILC session (2009)

The Committee notes the information provided by the Government in relation to the application in practice of Article 6, paragraphs 3 and 6, of the Convention (payment of cash benefits to women workers who have not completed six months of contributions or are not covered by the Obligatory Social Insurance Code) and, in particular, the amendments made to the Family Benefits for Children Act No. 32/2004. It requests the Government to provide the additional information necessary on the following points.

Article 2, paragraph 1. Scope of application. With reference to its previous comment, the Committee notes with interest that, according to the Government’s report, a draft amendment to section 10 of the Labour Code, extending the application of the Labour Code to foreign nationals employed in foreign companies in Bulgaria, has been submitted to the National Assembly. The Committee requests the Government to indicate in its next report the progress achieved in the adoption of this draft text.

Article 3. Health protection. Further to its previous comment, the Committee notes the amendment of section 307 of the Labour Code adopted in 2004, which limits the prohibition concerning hazardous or arduous types of work, the list of which is to be defined by an ordinance of the Minister of Labour and Social Policy and the Minister of Health, in accordance with paragraph 3 of this Article to pregnant women and breastfeeding mothers The Committee requests the Government to indicate whether this ordinance has been adopted and, if so, to provide a copy.

The Committee notes the information provided by the Government on the arrangements and procedures for the evaluation of risks to the health of pregnant and breastfeeding women, including the extract from the Ordinance on their occupational reassignment. The Committee requests the Government to indicate, in accordance with point (b) under Article 3 of the report form, the manner in which the results of the assessment of health risks are made available to the women concerned and to provide statistics on the number of cases and the circumstances in which the health authorities have availed themselves of the provisions of section 309 of the Labour Code.

Article 4, paragraphs 1 and 4. Length of maternity leave, compulsory postnatal leave. The Government indicates in its report that, under the terms of section 163(1) of the Labour Code, as amended in 2004 and 2006, the length of maternity leave has been increased from 135 days to 315 days. The Committee notes this information with interest. Please indicate the measures adopted or envisaged to ensure a period of compulsory postnatal leave of at least six weeks, in accordance with these provisions of the Convention.

Article 8, paragraph 1. Prohibition of dismissal during pregnancy and maternity leave. Under the terms of section 9 of the Protection against Dismissal Act, after the person claiming to be the victim of discrimination proves the facts, the defendant has to prove that the right to equal treatment has not been infringed. The Committee requests the Government to explain the manner in which this provision is applied in practice in the light of Article 8, paragraph 1, of the Convention, under which the burden of proving that the reasons for dismissal are unrelated to pregnancy or childbirth and its consequences or nursing shall rest on the employer.

Article 9, paragraph 1. Inclusion of the period of maternity leave in the period of service. In reply to the Committee’s previous comment, the Government indicates that, according to national law, maternity leave is considered as a period of service. The Committee would be grateful if the Government would specify the relevant national provisions.

Article 9, paragraph 2. Requirement of a medical certificate for the conclusion of an employment contract. The Committee once again requests the Government to indicate whether the medical certificate, which is included on the list of documents required for the conclusion of a labour contract, under the terms of section 1(4) of Ordinance No. 4 of 11 May 1993, cannot contain information relating to pregnancy (unless where such information is required for recruitment to work that is prohibited for pregnant or breastfeeding women, or the work involves a risk to the health of the woman and child).

Direct Request (CEACR) - adopted 2003, published 92nd ILC session (2004)

The Committee takes note of the Government’s first report on the application of the Convention and the Government’s response to the comments by the Confederation of Independent Trade Unions of Bulgaria (CITUB). It would be grateful if it would provide the necessary additional information on the following points.

Article 2, paragraph 1, of the Convention. The Committee observes that the Labour Code does not appear to apply to the employment relationships of foreign nationals employed in Bulgaria by foreign companies. It requests the Government to indicate in its next report whether this is indeed the case and, if so, to specify how the protection established in the Convention is applied to this category of women workers.

Article 3. In its observations, the CITUB stresses the need to periodically update the list of jobs which may not be performed by women pursuant to section 307(2) of the Labour Code, which provides that the list is to be updated at least once every three years, whereas the list currently in force dates back to 1993. In its reply, the Government states that a Bill on amendments and supplements to the Labour Code is currently before the National Assembly, and that it envisages, inter alia, the amendment of section 307 of the Labour Code in order to limit the scope of the prohibition on hazardous and arduous work only to employees who are pregnant or are nursing. The Committee notes this information with interest. It requests the Government to indicate in its next report any progress made in this respect and to provide a copy of the new regulations on hazardous or arduous work as soon as they have been adopted.

The Committee further notes that under section 309 of the Labour Code a pregnant woman or a nursing mother must either be reassigned to another job or have her working conditions adapted if the health authorities find that her work is unsuited to her condition. It also notes the Government’s statement in its report that the employer, together with the health authorities, determines the posts and jobs that are suitable for pregnant or nursing women and that section II of the Ordinance on vocational reassignment regulates this matter in greater detail. The Committee would be grateful if the Government would provide the text of the abovementioned Ordinance, together with the information required by item (b) under Article 3 in the report form on the arrangements and procedures for carrying out health risk assessments and the manner in which the results thereof are made available to the women concerned. Please also provide statistics on the number of instances and the circumstances in which the health authorities have had recourse to the provisions of section 309 of the Labour Code.

Article 4, paragraph 4. The Committee notes the provisions on maternity leave set forth in section 163 of the Labour Code. It observes that this provision does not state expressly that postnatal leave is compulsory. Furthermore, under section 7(7) of the Act of 16 September 2003 on protection against discrimination, pregnant women or mothers may waive the protection provided in the legislation. In these circumstances, the Committee would be grateful if the Government would indicate the measures taken or envisaged to incorporate in the national legislation a provision which expressly gives effect to this provision of the Convention, under which with due regard to the protection of the health of the mother and that of the child, maternity leave shall in principle include a period of six weeks’ compulsory leave after childbirth, during which the woman may not be allowed to work.

Article 6, paragraph 3. Pursuant to section 41 of the Obligatory Public Insurance Code, to which section 49(1) of the Code refers, the amount of the daily indemnity is reckoned on the basis of the average daily income for which insurance payments have been made for the six months preceding the occurrence of the contingency. Since there appears to be no qualifying period for maternity cash benefits, the Committee requests the Government to indicate how the benefits are calculated in respect of women workers who have not completed six months’ membership before the beginning of their leave.

Article 6, paragraph 6. The Committee notes that under section 4(2) of the Obligatory Public Insurance Code, women hired by one or more employers for not more than five working days (40 hours) during a calendar month are not entitled to the maternity protection provided under obligatory social insurance. It requests the Government to indicate whether these women workers are entitled, as this provision of the Convention requires, to adequate benefits out of social assistance funds, subject to the means test required for such assistance.

Article 8, paragraph 1. The Committee notes the information supplied by the Government and the provisions of the law that protect women workers against dismissal during the period referred to in this Article of the Convention. It also notes that under section 9 of the Act on protection against discrimination, in proceedings for protection against discrimination, it is for the claimant to prove the facts alleged and for the defendant to prove that the right to equal treatment has not been infringed. The Committee would be grateful if the Government would provide information on how this provision of the Act on protection against discrimination is applied in practice in the event of women being dismissed during the period protected.

Article 9, paragraph 1. The Committee hopes that the Government’s next report will contain information on any measures which may exist to consider maternity leave as a period of service for the determination of the woman’s rights, as recommended in Paragraph 5 of the Maternity Protection Recommendation, 2000 (No. 191).

Article 9, paragraph 2. The Committee notes that under section 1(4) of Ordinance No. 4 of 11 May 1993, a medical certificate is among the documents required for concluding a work contract. It also notes that under section 12(1) and (3) of the Act on protection against discrimination, an employer may not impose gender-related requirements on a candidate for a job, or refuse to employ a candidate on grounds of pregnancy, maternity or raising children. In view of the abovementioned provisions of the Act on protection against discrimination, it is the Committee’s understanding that the medical certificate required for the conclusion of a work contract may not contain information pertaining to pregnancy (unless such information is required in connection with jobs prohibited for pregnant women or nursing mothers or jobs involving health risks for the mother and child). It requests the Government to state whether this is the case and, if it is, to indicate the relevant texts.

Lastly, the Committee would be grateful if the Government would provide, in accordance with the report form, information on the manner in which the Convention is applied in practice, including for example statistics on the total number of women employed, including the number of those in atypical forms of dependent work, such as home work, telework and temporary work; please also provide extracts of official reports or decisions by courts of law or other tribunals involving questions of principle relating to the application of the Convention, information regarding the number and nature of contraventions reported and any other particulars of difficulties encountered in the implementation in practice of the Convention (see under Article 2 and Parts IV and V of the report form).