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

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

Observations from trade unions. Application of the Convention in practice. The Committee notes the observations made by the Guatemalan Trade Union, Indigenous and Campesino Movement (MSICG) and the General Confederation of Workers of Guatemala (CGTG), dated 29 August and 1 September 2014, and received on 3 and 4 September 2014. The organizations indicate that maternity protection is not effective: inappropriate use of temporary contracts for permanent workers; women domestic workers do not enjoy adequate protection; many enterprises are not registered with the social security scheme and so workers cannot receive the relevant benefits and are obliged to attend national health centres or hospitals under precarious conditions; pregnant women are not hired because of the costs they represent; and where enterprises pay social security contributions, the women are not allowed to go for prenatal checks. Furthermore, as regards dismissals of pregnant women (and the lengthy court proceedings for their reinstatement), the Committee notes that, in 2012 and 2013, a total of 475 pregnant women and 272 nursing women were dismissed from their jobs. The Government indicates in its report that the labour inspection services monitor the social security registration of working mothers as a form of ensuring compliance with the Convention. However, the Committee observes that the information concerning the controls made by the labour inspectorate does not mention maternity protection. The Committee requests the Government to ensure that the labour inspectorate responds to the concerns of the trade unions and to supply information on the special controls carried out in this area.

Lastly, as regards the use of pregnancy tests prior to recruitment, the Committee reiterates that this is a very serious form of discrimination and refers to its 2013 observation on the application of the Discrimination (Employment and Occupation) Convention, 1958 (No. 111), and the urgent steps that the Government must take in this regard.

Article 4(4), (5) and (8). Benefits paid out of social assistance funds. The Committee notes the benefits provided through the “zero hunger” plan, prenatal and postnatal medical benefits, medical care provided for infants up to 2 years of age, and the “Safe, family-centred maternity” plan. The Committee understands that women workers who do not meet the requirements to receive maternity benefits are entitled to the benefits referred to above and requests the Government to confirm this understanding. The Committee also requests the Government to indicate whether, at the same time, women workers continue to receive maternity benefits paid by the employer.

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

Article 3(2) and (3) of the Convention. Compulsory period of postnatal leave. Further to its previous comments in which the Government was requested to guarantee the compulsory nature of the period of postnatal leave, the Committee notes that the Government only refers to the mission of the labour inspectors to monitor the social insurance registrations. Therefore, the Committee once again requests the Government to take the necessary measures to incorporate an explicit provision in national legislation to guarantee the compulsory nature of the period of postnatal leave, with the aim of preventing women from resuming work before the end of the six-week period as a result of undue pressure or with a view to receiving their full salary, to the detriment of their health.

Article 4. Cash and medical maternity benefits. Suspension. The Committee notes the technical and legal study forwarded by the Government which states that a revoking of sections 48(c), 149(c) and 71(c) of Agreements Nos 410, 466 and 468, respectively, of the Administrative Board of the Guatemalan Social Security Institute (IGSS) – which provide for the suspension of benefit payments in the event of blatantly anti-social behaviour on the part of the beneficiary – would mean removing protection from IGSS workers, and also from affiliated persons and beneficiaries who attend the various offices and medical units, in the face of any verbal abuse or physical assault. The Committee again reminds the Government that the abovementioned provisions are contrary to the Convention, which does not permit the suspension of benefit payments in the event of blatantly anti-social behaviour on the part of the beneficiary. The Government has committed itself to an international obligation and it is bound to ensure that the IGSS Administrative Board respects and applies that obligation. The Committee hopes that the Administrative Board will be able to find more effective means of preventing verbal abuse or physical aggression towards its employees which does not entail denying the right of the latter to maternity benefits in violation of the international commitments entered into by Guatemala. While noting the Government’s indication that no case of suspension based on the abovementioned sections has been recorded, the Committee hopes that the Government will take measures to ensure that sections 48(c), 149(c) and 71(c) of Agreements Nos 410, 466 and 468, respectively, are revoked.

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

The Committee notes that the Government’s report provides no information in response to its previous comments. In these circumstances, the Committee is bound to reiterate its requests and hopes that the Government’s next report will contain detailed information on the measures adopted:

• -to guarantee the compulsory nature of the period of postnatal leave, in accordance with Article 3(2) and (3) of the Convention;
• -to take the necessary measures expressly to repeal sections 48(c), 149(c) and 71(c) of Decisions Nos 410, 466 and 468 of the Administrative Board of the IGSS and thus bring the legislation into line with Article 4 of the Convention;
• -to provide, for women workers who do not meet the requirements to receive social security benefits, for the grant of benefits out of social assistance funds and not by the employer, in accordance with Article 4(4), (5) and (8).

Lastly, the Committee requests the Government to reply to the comments of 29 August 2013 by the General Confederation of Workers of Guatemala (CGTG), on the application of the Convention in practice, and particularly on cases of dismissals of pregnant women, and on the effective coverage of the Guatemalan Social Security Institute.

[The Government is asked to reply in detail to the present comments in 2014.]

Observation (CEACR) - adopted 2012, published 102nd ILC session (2013)

Article 1 of the Convention. Coverage. The Committee notes with interest the extension of the geographical coverage of the sickness, maternity and accident programmes of the Guatemalan Social Security Institute (IGSS) to the departments of Petén, Santa Rosa and El Progreso. The inclusion of the three departments in 2011 completed the process of the extension of coverage to the whole of the national territory. While taking due note of the statistical data provided by the Government in its report, the Committee observes that such data still lack the level of detail required to assess the number and categories of women who are effectively covered by the scheme (in relation to the total number of employed women in the various departments of the country). The Committee therefore wishes to emphasize the importance of statistical tools in developing a baseline with a view to the extension of maternity protection to all the categories of women workers protected by the Convention. The Committee therefore requests the Government to indicate the progress achieved in developing the new statistical system referred to in the report provided in 2008.

Article 3(2) and (3). Compulsory period of maternity leave. The Committee notes the Government’s reply in its report to its request made to legally guarantee the compulsory period of post-natal leave of at least six weeks for all women covered by the Convention and to prohibit the employment of women during their post-natal leave. The Government indicates that the period envisaged in the IGSS regulations exceeds six weeks, as set out in sections 114 and 34, as amended, of Decisions Nos 466 and 468 of the Administrative Board of the IGSS, respectively. The Government adds that in the event of the return to work of a woman before the employer has received notification of the termination of incapacity, the employer is required to notify the Institute within three days; furthermore, in the event that a woman is employed during the post-natal period, the employer shall cover the costs arising out of the unwarranted payment of the allowance, without prejudice to being liable to the penalties envisaged in the Labour Code. The Committee recalls that the compulsory nature of the post-natal leave and the minimum period of leave are protective measures intended to prevent women from resuming work before the end of the six-week period as a result of undue pressure or with a view to material advantage to the detriment of their health. The Committee therefore once again urges the Government to take the necessary measures to guarantee the compulsory nature of the period of post-natal leave, in accordance with the above provisions of the Convention.

Article 4(1). Suspension of benefits. The Committee notes the Government’s indications concerning the absence of cases in which benefits have been suspended on the grounds of the clearly anti-social behaviour of the beneficiary and the fact that, were such a case to arise, benefits would be provided once again when the reasons for their suspension had ceased. The Committee observes that on various occasions the Government has referred to the non-application of the respective rules, although this has not resulted in the repeal of sections 48(c), 149(c) and 71(c) of Decisions Nos 410, 466 and 468 of the Administrative Board of the IGSS, respectively. This reason for the suspension of benefits is not in accordance with the provisions of the Convention as it amounts to an unjustified limitation on entitlement to medical and cash benefits. The Committee once again requests the Government to take the necessary measures to bring the above legislation into conformity with the provisions of the Convention.

Article 4(4), (5) and (8). Employer liability. The Committee notes that, despite the fact that it has been the subject of reiterated requests since 1993, the Government has omitted to address the issue of possible reforms of the national legislation. The Committee recalls the importance of a provision establishing that women who do not fulfil the required conditions to receive social security benefits, are to be granted adequate benefits out of social assistance funds (subject to the means test required for such assistance), and not by the employer, with a view to preventing discrimination in the recruitment of women who are of child-bearing age. The Committee hopes that the Government will take the necessary measures in the near future to bring the national legislation into conformity with the provisions of the Convention.

Observation (CEACR) - adopted 2009, published 99th ILC session (2010)

With reference to its previous comments, the Committee notes the information and statistics provided in the Government report and, in particular, the information concerning the application of Article 6 of the Convention regarding the prohibition of dismissal during maternity leave, including the opinion of the Technical and Legal Advisory Council of the Ministry of Labour and Social Welfare.

Article 1. Coverage. The Committee recalls that, in 2003, the Government expressed the intent to extend geographical coverage of the sickness, maternity and employment injury scheme of the Guatemalan Social Security Institute (IGSS) to the remaining three departments (El Petén, El Progreso and Santa Rosa). In this respect, the report indicates that feasibility studies regarding the extension of coverage of the sickness and maternity insurance scheme found that such extension would result in losses for the IGSS and that consequently the only way to extend coverage would be through the use of public funds (capital solidario). The administration has put out to public tender the feasibility and viability studies to extend the sickness and maternity programmes and the Government has committed itself to follow-up on this process and inform the Committee accordingly. With regard to statistics on the number and categories of women workers actually covered by the sickness and maternity scheme of the IGSS requested by the Committee in its previous comments, the Government indicated that no such statistics were available, but that currently a new system was being developed to collect this type of information. The Committee takes due note of the Government’s commitment to extend maternity benefits to women workers in the departments of El Petén, El Progreso and Santa Rosa either through the sickness and maternity insurance scheme of the IGSS or by means of public funds. The Committee hopes that concrete progress will be achieved in this area in the very near future and that the Government will be able to effectively monitor the situation through the new system of collection of statistical indicators on the number of women actually enjoying maternity benefits both in the public and private sectors and irrespective of the size of the enterprise.

Article 3, paragraphs 2 and 3. Compulsory period of maternity leave. In its previous comments, the Committee asked the Government to amend section 152 of the Labour Code in order to guarantee a period of compulsory post-natal leave of at least six weeks. In response, the Government states that section 34 on the Regulations respecting cash benefits (Order No. 468 of the IGSS) makes the right to maternity cash benefit conditional on effective rest of the woman worker, who has to abstain herself from remunerated work while in receipt of maternity cash benefits. The Committee observes that section 34 prohibits women from receiving concurrently maternity cash benefits and income from work, but does not establish a minimum period of compulsory post-natal maternity leave required by the Convention as a protective measure aimed to prevent women from resuming work as a result of pressure or need before the expiry of the statutory period of leave to the detriment of her health. The Committee therefore once again urges the Government to legally guarantee the compulsory period of post-natal leave of at least six weeks to all women covered by the Convention and to prohibit employers from employing a woman during her post-natal leave.

Article 4, paragraph 1. Suspension of benefits. In its previous comments the Committee asked the Government to repeal the provisions which allow suspension of benefits in the event of “clearly anti-social behaviour” of 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). In response, the Government informs that in the last year and a half there have been no cases of dismissal on the basis of the provisions in question and that an information programme has been developed by the IGSS on the rights and obligations of women who are entitled to the maternity protection programme. In the light of the practice, the Committee trusts that the Government will have no difficulty in repealing the abovementioned provisions in the very near future.

Article 4, paragraphs 4, 5 and 8. Employer liability. The Committee trusts that the Government’s next report will contain a detailed reply to the Committee’s longstanding request to amend the national legislation under which the employer may 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) or 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 is asked to reply in detail to the present comments in 2011.]

Direct Request (CEACR) - adopted 2005, published 95th ILC session (2006)

Article 3, paragraphs 2 and 3, of the Convention. In its previous comments, the Committee emphasized the need to supplement the national legislation to establish the compulsory nature of postnatal leave during a period of no less than six weeks following confinement. The Government indicates in its last report that section 152 of the Labour Code establishes such compulsory leave during the four weeks preceding confinement and the eight weeks following confinement. While taking due note of this information, the Committee is bound to note that, in its current wording, section 152 of the Labour Code is confined to establishing a right to leave by providing that a woman worker shall benefit from leave paid at the rate of her wage for the 30 days prior to confinement and the 54 days which follow it. This provision does not explicitly establish the compulsory nature of postnatal leave for a period of not less than six weeks following confinement. It does not therefore appear be such as to prevent a woman worker who so wishes from returning to work during the period of postnatal leave. The Committee wishes to recall in this respect that this minimum period of six weeks compulsory postnatal leave envisaged by the Convention constitutes a protection measure intended to prevent a woman from returning to work before the completion of this period to the detriment of her health and that of her child. Under these conditions, the Committee trusts that the Government will have no difficulty in amending section 152 of the Labour Code so as to establish the explicit guarantee for women who have given birth of a period of compulsory postnatal leave of not less than six weeks during which they may not return to work and no employer may employ them.

Article 4, paragraph 1. In reply to the Committee’s previous comments concerning the possibility of suspending the provision of benefits in the event of "clearly anti-social behaviour" of 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 Committee regrets to note that the Government confines itself to indicating that the Guatemalan Social Security Institute (IGSS) has not examined the possibility of repealing these provisions, which therefore remain applicable. The Committee notes this information and trusts that the Government will take all the appropriate measures in the near future to repeal the above provisions and therefore to improve the effect given to the Convention in this respect.

Article 4, paragraphs 4, 5 and 8. In its previous comments, the Committee requested the Government to make every effort to amend the national legislation, under which the employer may 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 for women workers who are covered by 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 Committee notes that the Government’s report does not provide any new information on this subject. Under these conditions, although aware of the current difficulties in covering the cost of maternity benefits out of public assistance, the Committee is bound to hope that the IGSS will soon undertake, as the Government invited it to do previously, the necessary actuarial studies so as to obtain all the necessary information with a view to bringing national law and practice progressively into full conformity with the Convention. Please provide copies of the actuarial studies referred to above. (See also the observation that the Committee is making concerning Article 1 of the Convention.)

Article 6. In reply to the Committee’s previous comments, the Government indicates that section 46 of the Regulations on sickness and maternity protection, under which employers cannot terminate the contract of employment of their employees while they are in receipt of sickness or maternity benefits, is in accordance with section 151(c) of the Labour Code, which prohibits the termination of the employment of women workers who are pregnant or nursing. While noting this information, the Committee observes that the protection against dismissal guaranteed by these two texts concerns two distinct periods: maternity leave, on the one hand, and pregnancy and the period during which a woman worker who has returned to work nurses her child, on the other. In this respect, with a view to avoiding any ambiguity in the law, and taking into account the fact that all women workers are not affiliated to the IGSS and do not therefore benefit from the protection afforded by section 46 of the above Regulations, the Committee considers that it would be appropriate to include in section 151(c) a provision affording protection against dismissal during the period of maternity leave. It therefore once again requests the Government to re-examine this matter in light of the above comments and Article 6 of the Convention, under the terms of which it is not lawful for an employer to give notice of dismissal to a woman who is absent from work on maternity leave or at such a time that the notice would expire during such absence. The Committee requests the Government to provide full information on the measures adopted or envisaged to give full effect to this provision of the Convention.

Observation (CEACR) - adopted 2005, published 95th ILC session (2006)

Article 1 of the Convention. In its previous comments, the Committee requested the Government to provide detailed information, including statistics, on the progress achieved in the extension of the coverage of the sickness, maternity and employment injury insurance scheme, both in geographical terms to the various departments and regions of the country, and to the various categories of women workers and enterprises. In its report, the Government indicates that, in 2003, a total of 957,921 persons were affiliated to the social security system and specifies that it does not have statistics disaggregated by sex on this subject. It adds that the sickness and maternity insurance scheme currently covers 19 departments of the 22 in the country and that this coverage should soon be extended to the three departments which are currently still excluded (El Petén, El Progreso and Santa Rosa). The Government also indicates that, according to the information provided by the Guatemalan Social Security Institute (IGSS), of the 41,950 pregnancies reported in 2004, a total of 16,780 concerned women affiliated to the social security system and who were therefore covered by the maternity insurance scheme. The Committee notes this information. While observing with interest the trend for the progressive extension of the geographical coverage of the sickness and maternity insurance scheme throughout the national territory, the Committee trusts that the three departments which are currently excluded could very soon benefit from such coverage, as the Government had already expressed the hope of being able to achieve this extension in 2003. It recalls in this respect that, under the terms of Article 1, the Convention applies to women employed in industrial undertakings and in non-industrial and agricultural occupations, including women wage earners working at home, both in the public and private sectors and irrespective of the size of the enterprise. The Committee would therefore be grateful if the Government would keep it informed of any development in this respect, particularly by providing with its next report copies of the decisions relating to the successive extensions of the geographical coverage of the sickness and maternity insurance scheme. Finally, as such information was not included in the Government’s report, the Committee once again requests it to provide detailed statistics on the number and categories of women workers actually covered by the sickness and maternity scheme of the IGSS in relation to the total number of women employed in the various departments of the country.

The Committee is raising certain other matters in a request addressed directly to the Government.

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

Article 3, paragraphs 2 and 3, of the Convention. The Committee notes that the Government’s report does not contain information in reply to its previous comments on the measures adopted or envisaged to supplement section 152 of the Labour Code to make explicit provision for the compulsory nature of postnatal leave during a period of at least six weeks after confinement, in accordance with these provisions of the Convention. It trusts that the Government will not fail to provide the information requested in its next report.

Article 4, paragraph 1. In its previous comments, the Committee noted that the Ministry of Labour and Social Insurance had requested the Guatemalan Social Security Institute (IGSS) to examine the possibility of repealing the provisions authorizing the suspension of benefit in the event of "clearly anti-social 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). In view of the fact that the Government’s report does not contain any information on the effect given by the IGSS to this request, the Committee trusts that the Government will not fail to indicate in its next report the measures adopted or envisaged to repeal the above provisions so as to give better effect to the Convention on this point.

Article 4, paragraphs 4, 5 and 8. In its previous comments, the Committee emphasized 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 for women workers who are covered by 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 in its last report that it has informed the administrative board of the IGSS of the need to undertake actuarial studies on this subject, although in view of the economic crisis affecting the country, the payment of benefit out of public assistance funds remains impossible for the time being. The Committee notes this information and trusts that the Government will make every effort to bring its law and practice into full conformity with the Convention in the near future. Please provide copies of the above actuarial studies. (See also the observation that the Committee is making concerning Article 1 of the Convention.)

Article 6. In reply to the Committee’s previous comments, the Government, after referring to the employment protection from which women benefit during their maternity leave, indicates that it is its intention in the near future to harmonize section 46 of the Regulations on sickness and maternity protection and the Labour Code. The Committee notes this information. It hopes that the necessary measures will be taken in the near future to supplement section 151 of the Labour Code with a provision which takes fully into account the provisions of Article 6 of the Convention.

[The Government is asked to reply in detail to the present comments in 2005.]

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

Article 1 of the Convention. In reply to the Committee’s comments, the Government indicates in its report for the period ending 1 September 2002 that the Guatemalan Social Security Institute (IGSS) has completed the actuarial studies so that it can decide upon the extension of social security to three new departments which did not have health and maternity services. It adds that it hopes that by the end of 2003 these services will be available in all departments. The Committee notes this information with interest. It requests the Government to provide detailed information in its next report on the progress achieved in the extension of the coverage of the sickness and maternity schemes, both in geographical terms to the various departments and regions of the country, and to the various categories of women workers and enterprises. The Committee recalls that, in accordance with Article 1, the Convention applies to women employed in industrial enterprises and in non-industrial and agricultural occupations, including women wage earners working at home, in both the public and the private sectors and irrespective of the size of the enterprise. The Committee would also be grateful if the Government would provide copies of the relevant decisions of the IGSS relating to this extension, with an indication of the departments covered and those which, as the case may be, are not yet covered. Finally, the Committee trusts that the Government will not fail to provide detailed statistics on the number of women workers actually covered by the sickness and maternity scheme of the IGSS in relation to the total number of women employed in the various departments of the country.

[The Government is asked to reply in detail to the present comments in 2005.]

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

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.

Direct Request (CEACR) - adopted 1997, published 86th ILC session (1998)

Referring to its observation, the Committee is obliged once again to draw the Government's attention to the following points:

Article 1 of the Convention. The Government indicates that it has extended the coverage of the social security scheme to more than half of the departments in Guatemala. The Committee notes this information. It observes, however, that, according to the new statistics provided by the Government, the proportion of the economically active population covered by the social security scheme, which includes maternity protection, continued to decrease in 1996; in addition, in 1996 the number of members also decreased in relation to 1995. Given the importance which it attaches to extending maternity protection through social security, so as to cover all the women workers protected by the Convention for the whole of the territory, the Committee invites the Government to provide, in its next report, detailed information on the measures taken in this regard.

Please also continue to provide statistics on the scope of social security, in particular on the number of women wage-earners (including those working at home) covered by the sickness-maternity scheme of the Guatemalan Social Security Institute in relation to the total number of women workers (excluding those who are self-employed).

Article 3, paragraphs 2 and 3. In its previous report the Government stated that respect for the right to maternity leave is compulsory. The Committee trusts that the Government will not experience any difficulties in supplementing section 152 of the Labour Code in order to make express provision for the compulsory nature of postnatal leave and to ensure, in accordance with these provisions of the Convention, that for a period of at least six weeks after confinement a woman worker may not be authorized to work.

Article 4, paragraph 1. The Government stated previously that section 48 of the Regulations respecting sickness and maternity protection, section 149 of the medical assistance Regulations and section 71 of the Regulations respecting cash benefits, authorizing the IGSS to suspend the payment of benefits in the case of "marked antisocial behaviour" by the beneficiary, were not applied. Consequently, the Committee trusts that the Government will, in the near future, repeal these provisions so as to give full effect to the Convention in this regard.

Article 4, paragraphs 4, 5 and 8. In its previous comments, the Committee emphasized the need to amend the legislation in force which allows the cost of maternity benefits to be charged to an employer. The Committee recalls that under Article 4, paragraphs 4, 5 and 8, of the Convention cash benefits shall be provided either by means of compulsory social insurance or by means of public funds. Women who fail to qualify for benefits provided as a matter of right shall be entitled to adequate benefits out of social assistance funds. In addition, in no case shall an employer be individually liable for the cost of maternity benefits, since this might discourage him from employing women of child-bearing age. The Committee trusts that in the near future the Government will take the necessary measures to guarantee the full application of these provisions of the Convention. As regards the women workers who are still not covered by the social security scheme, the Committee invites the Government to refer back to its comments on Article 1 above.

Article 6. The Committee has noted the new provisions of section 151 of the Labour Code. In particular, it notes that under paragraph (c) it is forbidden for an employer to dismiss women workers who are pregnant or are nursing mothers, except where proof can be provided of reasonable grounds for dismissal constituted by a serious dereliction of contractual duty by a woman wage-earner, in accordance with section 77 of the Code. In this case, an employer must seek prior authorization from the courts. According to the court rulings provided by the Government, the Committee observes that courts ensure that this procedure has been observed and also verify the grounds for dismissal.

While noting the guarantees which exist in legislation and in practice to ensure that women workers cannot be dismissed without just cause during pregnancy or while they are nursing mothers, the Committee recalls that under Article 6 of the Convention it shall not be lawful for an employer to give notice of dismissal to a woman 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. Consequently, the Committee invites the Government to provide any information on the measures taken or envisaged to ensure that this provision of the Convention is fully applied.

[The Government is asked to report in detail in 1999.]

Observation (CEACR) - adopted 1997, published 86th ILC session (1998)

The Committee takes note of the information provided by the Government in its report. It notes however that it replies only partially to its previous comments. The Committee is therefore once again obliged to raise the points in question in a new request addressed directly to the Government concerning the following Articles of the Convention: Article 1 (extension of coverage under the social security scheme), Article 3, paragraphs 2 and 3 (compulsory nature of postnatal leave), Article 4, paragraph 1 (suspension of benefit in case of the pronounced anti-social conduct), Article 4, paragraphs 4, 5 and 8 (prohibition of making employers individually liable for the cost of maternity benefit and assistance to women who fail to qualify for benefits as of right), Article 6 (prohibition of dismissal during maternity leave).

[The Government is asked to report in detail in 1999.]

Direct Request (CEACR) - adopted 1995, published 83rd ILC session (1996)

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:

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.

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

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.

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

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.