Observation (CEACR) - adopted 1998, published 87th ILC session (1999)

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

1. The Committee takes note of the information provided by the Government in its last report and in particular the information concerning Article 4, paragraphs 3 and 8, of the Convention. The Committee also notes with interest a number of measures to strengthen maternity protection mentioned by the Government in its report. The Committee also takes note of the observations communicated by the General Union of Workers (UGT) on 22 January 1998.

2. Domestic workers (Articles 3, 4, 5 and 6 of the Convention). In its previous comments, the Committee had recalled that under section 10(2) of Royal Decree No. 1424/1985, an employer can end an employment contract of a domestic worker before the expiration of the agreed term of service by "renunciation". The Committee had noted the comments made by the General Union of Workers to the effect that employers have recourse to the "renunciation" procedure as soon as they learn that the employee in question is pregnant. The Committee therefore had drawn the Government's attention to the use made of this procedure which in practice could result in depriving domestic workers of the protection provided by the Convention. In its report, the Government indicates that the system of maternity protection, which includes leave, maternity benefits and nursing breaks, also applies to women in domestic service. Thus, if an employment contract is broken at a time when the worker is on maternity leave, she continues to receive her maternity benefits until the end of the period of leave; this provision applies equally to domestic workers. The Government also indicates that "renunciation" by an employer cannot in practice deprive women in domestic service of the protection provided by the Convention since, under Spanish law, "renunciation" by an employer may only take effect after the compulsory period of maternity leave.

The Committee takes note of this information. It recalls that its previous comments did not concern "renunciation" by an employer during the worker's period of maternity leave, but rather, the use of this procedure to circumvent the rules on maternity protection provided by the Convention, inasmuch as the employer may use the "renunciation" procedure as soon as he learns of the worker's pregnancy and thus deprive her of any protection including protection against dismissal. Under these circumstances, and given that such a procedure is in breach of European Community law, namely the Equal Treatment Directive 76/207, 9 February 1972, and the Pregnant Workers' Directive 92/85, 19 October 1992, the Committee hopes that the Government will re-examine the question and indicate the measures taken or contemplated to combat the abuses mentioned and ensure that the protective provisions of the Convention cannot be circumvented in the case of domestic workers. The Committee also requests the Government to indicate whether any judicial decisions have been handed down on this matter.

3. Article 6. With reference to the Committee's earlier comments, the Government indicates that Act 42/1994 concerning fiscal, administrative and social measures introduced into the revised text of the General Social Security Law, section 133bis, under which maternity and adoption in particular, which had previously come under temporary incapacity for work, are now expressly protected in their own right. The Government also refers to the new provisions in section 55(5) of the General Conditions for Workers, under which any dismissal is null and void if it is based on any of the grounds for discrimination prohibited by the Constitution or legislation, or violates the workers' fundamental rights and public freedoms. The Government therefore considers that, through this general protection against any grounds for discrimination, maternity enjoys a particular protection by virtue of the prohibition of any form of discrimination based on sex (article 14 of the Constitution) and by virtue of the prohibition of discrimination in employment on grounds of sex (section 17 of the General Conditions for Workers). In this regard, the Government refers to a number of decisions by the Constitutional Court to the effect that "discrimination on grounds of sex covers not only inequalities in treatment based on the mere fact of the sex of the person discriminated against, but also those inequalities in treatment based on the combination of conditions or circumstances directly and unequivocally linked to the person's sex; this is the case with pregnancy, a differentiating factor which, for obvious reasons, only affects women".

The Committee takes note of this information. It has also noted the comments made by the UGT to the effect that urgent positive action should be undertaken to prevent discrimination against women in access to employment and in concealed dismissals. The Committee recalls that, under Article 6 of the Convention, when a woman is absent from work on maternity leave as provided for by the Convention, it is unlawful for the employer to give her notice of dismissal during such absence, or to give her notice of dismissal at such a time that the notice would expire during such absence. In this regard, the Committee notes that according to certain judgements communicated by the Government, dismissals of women employees have been declared null and void by the Constitutional Court because the Court had concluded in these particular cases that discriminatory treatment on grounds of sex had taken place. Nevertheless, it would still appear to be the case that women employees dismissed during their pregnancy or following confinement, in accordance with the provisions of the General Conditions for Workers in the context of collective dismissals or dismissals for objective reasons -- which as such do not involve discrimination -- do not enjoy the protection provided by section 55(5) of the General Conditions for Workers. Under these circumstances, the Committee hopes that the Government will re-examine this question in the light of the above comments and that it will indicate the measures taken or contemplated to introduce in its national legislation a provision giving express effect to Article 6 of the Convention.

4. In its observations, the UGT, while acknowledging certain positive developments in the area of maternity protection, considers that women who work part time or intermittently can legally be excluded from the maternity protection provisions; according to the UGT, women in these situations are required to have worked for a minimum of 12 months before becoming entitled to social security benefits. The Committee hopes that the Government's next report will contain information on this point and on the possibility for these women of receiving benefits from the public assistance fund, in accordance with Article 4, paragraph 8, of the Convention.