Solicitud directa (CEACR) - Adopción: 2009, Publicación: 99ª reunión CIT (2010)

Convenio sobre la protección de la maternidad (revisado), 1952 (núm. 103) - España (Ratificación : 1965)

Measures taken by the Government to improve maternity protection. The Committee notes with interest the adoption of the resolution of 21 April 2004 of the Secretary of State for Social Security, which gives fathers who meet the eligibility requirements access to cash benefits in the event of the death of the mother, regardless of whether the mother was eligible for such benefits. The Committee also notes the creation, under Organic Act No. 3/2007 of 22 March 2007 concerning effective gender equality, of a paternity benefit paid to eligible fathers for 13 days in the event of birth or adoption. This text also provides that, where the mother is not eligible for maternity leave with cash benefits, the other parent shall from now on be entitled to the same period to which the mother could have been entitled.

Furthermore, the Committee notes with interest the new rules establishing, according to the age of the women workers concerned, the minimum contributions required to be entitled to cash benefits under a contributory regime, which no longer impose any conditions relating to contributions on women under 21 years of age on the day of confinement and apply reduced conditions for those under 26 years of age. The Committee notes that these measures give better effect to Article 4, paragraphs 1 and 4, of the Convention by allowing a higher number of women workers to benefit as a matter of right from cash maternity benefits.

Article 4, paragraph 5. Benefits by means of public funds. The Committee notes the amendments made to the General Social Security Act granting maternity benefits to workers who do not meet the contribution requirements. These benefits are paid for 42 days following the date of confinement, thus during the six-week compulsory postnatal leave period. The maternity leave to which workers in this situation are entitled nonetheless remains at 16 weeks. The Committee would be grateful if the Government would indicate in its next report whether women workers who do not fulfil the contribution requirements may, on a means-tested basis, qualify for other cash benefits of an appropriate amount, so as to enable them to meet their needs as well as those of their child throughout the entire duration of their maternity leave.

Articles 3, 4, 5 and 6. Domestic workers. In its previous comments, the Committee requested the Government to indicate the measures taken to strengthen the checks carried out to detect abuses which could arise from the renunciation procedure allowing employers to end an employment contract prematurely. According to the Government’s report, a reform of the regulations applicable to domestic work is currently being prepared with a view, in particular, to strengthening the rights of these workers by incorporating the general principles recognized under the Equality Act. The Committee requests the Government to keep the Office informed of the steps taken in that regard.

Article 6. Protection against dismissal. Under the national legislation, the termination of an employment contract and dismissal for disciplinary reasons during the protected maternity period are in principle prohibited and are authorized only where the employer proves that the termination or dismissal is on grounds unrelated to the pregnancy or the exercise of the right to leave. The employment protection guaranteed under Spanish legislation in the case of maternity concerns the period of the pregnancy, that of the maternity leave, as well as a period following the woman’s return to work. According to the Government, the duration of protection afforded under Spanish legislation is, in this sense, greater than that required by the Convention which only covers maternity leave, including any extension of that leave on medical grounds. The case law of the Supreme Court considers any dismissal arising during the protected periods to be null and void, except in cases in which the employer supplies proof that the dismissal is on objective grounds. The Government also indicates that, in the event that the employment contract comes to an end during the maternity or paternity leave, cash benefits continue to be paid until the end of that leave, followed by unemployment benefit, if applicable.

The Committee takes due note of this information. It wishes to recall that the purpose of the Convention is not to force employers to maintain employment contracts in all circumstances, but simply to protect women workers on leave by preventing a dismissal from taking effect during that leave for whatever reason. The adoption in 2000 of the Maternity Protection Convention (No. 183), which revises Convention No. 103, takes into account developments in national law and practice, since it extends the protected period beyond the period of maternity leave and prohibits dismissal only where it is for reasons of pregnancy, childbirth and its consequences or nursing. Furthermore, Convention No. 183, like the legislation of Spain, provides that the burden of proving that the reasons for dismissal are unrelated to maternity shall rest with employers. Those States which have ratified Convention No. 103 and whose legislation has developed in the same direction as Convention No. 183 are therefore advised to consider ratifying that Convention.