Observation (CEACR) - adopted 1994, published 81st ILC session (1994)

Maternity Protection Convention (Revised), 1952 (No. 103) - Spain (Ratification: 1965)

I. In its direct request of 1993, the Committee had expressed its intention to examine at the present session the communication of the General Union of Workers (UGT), received in January 1993, in the light of any comments that might be made by the Government in this respect. In November 1993, new communications have been received from the UGT and from the Trade Union Confederation of the Workers' Commissions (CC.OO) concerning the application of the Convention, in respect of which the Government had supplied information in its report received in December 1993.

1. Article 4, paragraph 3, of the Convention. (a) The UGT states in particular that freeom of choice of doctor and of hospital is not ensured through the effective application in practice of the legislation, because in the Spanish system of public health the beneficiaries are assigned to the district of their residence. In its report, the Government refers to Royal Decree No. 1575 of 10 September 1993 which regulates the free choice of generalists and paediatricians in the primary health care services of the National Health Institute with regard to the corresponding health districts. The Government emphasizes that the present development of the primary health care services and the progressive establishment of health centres has made it possible to improve the quality of medical assistance and to promote good personal relations between a doctor and a patient, ensuring a much greater presence of doctors and increasing the quantity and the quality of the services rendered. The Committee notes this information. It would be glad if the Government would continue to provide in its future reports information on the manner in which Decree No. 1575 of 1993 has contributed to the observance of the principle of freedom of choice of doctor and freedom of choice between a public and private hospital, as required by the above-mentioned provision of the Convention.

(b) As regards the question of the gratuity of the pharmaceutical services raised by the UGT, the Committee recalls that Article 4, paragraph 3, does not mention medicaments among the medical benefits that shall be provided to women workers on maternity leave.

2. Workers in domestic service (Articles 3, 4, 5, 6). The UGT states that the protection of workers in domestic service provided by the Convention is not realized in practice in view of the possibility afforded by the legislation for the employer to terminate the employment contract of his or her employee by "renunciation" (por "desistimiento"). According to the UGT, employers take advantage of this provision as soon as they become aware of the pregnancy of their employee. In its report the Government emphasizes that the common regime established in respect of maternity leave, nursing breaks and social security benefits is applicable to domestic servants. In its view, the procedure of "renunciation" does not affect the totality of the domestic servants, as it is foreseen only in respect of fixed-term employment contracts. The Committee takes note of this information. It notes that, according to section 10(2) of Royal Decree No. 1424/1985 of 1 August, an employment contract of a domestic servant can be terminated before the expiration of an agreed term of service by "renunciation" on the part of the employer. It considers therefore that recourse to this procedure by the employer may, in certain cases, result in depriving, in practice, domestic servants of the protection provided by the Convention. Consequently, the Committee hopes that the next report of the Government will contain information on the measures taken or contemplated to ensure that the protection provided by the Convention cannot be ignored in the case of domestic servants.

3. Point V of the report form. With reference to the comments of a more general character made by the Trade Union Confederation of the Workers' Commissions (CC.OO), the Committee would like the Government to supply in its future reports detailed information on the application of the Convention in practice.

II. The Committee also wishes to draw the Government's attention to the following point.

Article 4, paragraph 8. The Committee notes the legislative provisions adopted during the period covered by the Government's report. It notes in particular that Law No. 28/1992 of 24 November regarding urgent budgetary measures, which approved Royal Decree No. 5/1992 of 21 July, has added paragraph (d) to section 208 of the consolidated text of the General Social Security Law, authorizing enterprises affiliated to the general scheme to assume directly the payment, at their own expense, of cash benefits for temporary incapacity for work resulting from an ordinary disease or from an accident of non-occupational origin. Also, the Decree of 18 January 1993 has established the conditions and requirements to be fulfilled by the enterprises prevailing themselves of the voluntary collaboration scheme for the payment of cash benefits for temporary incapacity for work in cases of an ordinary disease, maternity or non-occupational accident. This Decree inserted in Chapter II of the Decree of 25 November 1966 regulating the collaboration of the enterprises in the administration of the General Social Security Scheme, a new section 4(a), Article 15ter of which stipulates that "the enterprises which prevail themselves of the form of collaboration regulated by this section will have the following obligations: (a) to pay at their own expense cash benefits due to their workers in case of temporary incapacity for work due to an ordinary disease, maternity or non-occupational accident". The Committee recalls in this respect that Article 4, paragraph 8, of the Convention stipulates that "in no case shall the employer be individually liable for the cost of such benefits due to women employed by him". It would ask the Government to indicate the manner in which it intends to give full effect to this provision of the Convention.