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

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

The Committee notes the reports provided by the Government in reply to its previous comments and the observations made in 2002 by the Trade Union Confederation of Workers’ Commissions (CC.OO.). It also notes with interest the adoption of various legislative texts and regulations that can reinforce maternity protection, and particularly Act No. 39/1999 to promote the reconciliation of working and family life, which extends, inter alia, the duration of maternity leave to 18 weeks.

The Committee wishes to draw the Government’s attention to the following points.

1. Protection against dismissal (Article 6 of the Convention). In reply to the Committee’s previous comments, the Government refers to the improvements made to the maternity protection system by Act No. 39/1999, which amends the Workers’ Statute on a number of points, including with regard to dismissal. Henceforth, the termination of the employment contract for objective reasons and dismissal for disciplinary reasons shall be considered null and void during the period of the suspension of the contract of employment, among other reasons, for maternity, risks related to pregnancy and in the event of adoption, as well as with regard to pregnant workers from the date of the beginning of pregnancy until the beginning of the period of the suspension of the contract (sections 52(4) and 55(5), in conjunction with section 45 of the Workers’ Statute). According to the Government, this protection would also apply in cases of collective redundancies, even though the relevant provisions have not been explicitly amended in this respect, in view of the procedural guarantees covering this type of dismissal. The Committee notes these changes with interest as they represent progress in relation to the previous legislation as pregnancy and maternity are now explicitly taken into account. However, the Committee notes that the new provisions of Act No. 39/1999 do not apply where the termination of the contract or the dismissal for disciplinary reasons are on grounds that are unrelated with pregnancy or leave entitlement. It recalls in this respect that, in accordance with Article 6 of the Convention, while a woman is absent from work on the maternity leave provided for in accordance with the Convention, it shall not be lawful for her employer to give her notice of dismissal during such absence, nor to give her notice of dismissal at such time that the notice would expire during such absence. In these conditions, the Committee hopes that the Government will continue to examine the matter and that it will be able to indicate in its next report any new measures adopted or envisaged to give fuller effect to Article 6 of the Convention.

Furthermore, the Committee ventures to suggest to the Government that it might examine the possibility of ratifying the Maternity Protection Convention, 2000 (No. 183), which, in Article 8, paragraph 1, contains more flexible provisions relating to protection against dismissal, while extending the duration of the period of protection.

2. Domestic workers (Articles, 3, 4, 5 and 6). In its previous comments, the Committee drew the Government’s attention to the legal provisions applicable to domestic workers allowing the employer to end a contract of employment of a domestic worker before the expiry of the agreed term of service by having recourse to the "renunciation" procedure. The Committee noted that, in certain cases, this procedure can allow employers to avoid the rules respecting the maternity protection envisaged by the Convention, as they can use the "renunciation" procedure as soon as they learn of the pregnancy of the employee, thereby denying her any protection, including protection against dismissal, and it therefore requested the Government to re-examine the matter. In its reports, the Government states that the legal provisions applicable to the employment relationship binding a domestic employee to her employer are of a special nature in view of the location in which the contractual obligations are effected and the relation of trust which has to exist between the parties to the contract. It adds that these specific circumstances, as acknowledged by the courts, justify the non-application of the rules respecting protection set out in the Workers’ Statute. In this regard, without disregarding the importance of trust as a characteristic element of the specificity of the employment relationship in domestic work, the CC.OO. considers that the fundamental rights of workers, and in this case the right of women not to be subjected to discrimination by reason of maternity, nevertheless have to be respected.

The Committee notes this information. It recalls that, in accordance with Article 1, paragraph 3(h), of the Convention, domestic work for wages in private households is included in the definition of the term "non-industrial occupations" and therefore lies within the scope of application of the Convention. While agreeing with the Government concerning the special nature of this type of employment relationship, the Committee nevertheless wishes to reiterate that the guarantees and protection afforded by the Convention are fully applicable to domestic work. The Committee therefore hopes that the Government will be in a position to provide information in future reports on any progress achieved in reinforcing supervision with regard to any abuses to which the "renunciation" procedure may give rise, thereby ensuring, in the context of maternity protection, real equality of treatment both between men and women and between women employed in domestic work and those engaged in other types of waged employment, in accordance with the provisions of the Convention.