Maternity Protection Convention, 1919 (No. 3) - Colombia (RATIFICATION: 1933)

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A Government representative recalled that his Government had fulfilled its obligation to implement substantial reforms in the area of labour legislation. The labour legislation dated from 1948 and thus needed to be adapted to new realities in the country and to be brought up to date so as to incorporate ILO standards and to create institution which were adopted to the situation in the country. In particular, his Government had elaborated a draft to incorpore the provisions of the Convention into Colombian legislation. This draft had been submitted to the National Labour Council, a tripartite body, before which an excellent presentation had been made by the Workers' representative who emphasied its importance for women workers in the country. On the other hand, without opposing that this draft be proposed to Parliament, the Employers' representative had expressed reservations concerning the timeliness of applying this Convention in the country not only for cost considerations, but also because employers would probably have less recourse to female labourers in their enterprises. The draft was ready but it was necessary to know if, in a country like Colombia, it was the right time to give it priority. A comparative study of the situation in Colombia with regard to that of other Latin American countries showed that his country held a first rate position as concerned the proportion of women labourers in the economy. The Government had fulfilled its obligations by elaborating new legislation which was ready to be presented to Parliament and applied. The economic situation prevailing in his country, however, should be taken into account.

The Workers' members recalled that, although Colombia had ratified the Convention in 1933, the aplication of the Convention as concerned the duration of maternity leave and the payment of benefits was still not guaranteed. Promises had been made for a number of years as this was not the first time this case had been discussed. After a very long discussion in 1988 this Commitee had urged the Government to adopt the necessary measures in the near future, with the assistance of the ILO. The economic and social situation, however, had been raised to justify deferring the adoption of these measures. It was absolutely necessary to know if the draft Bill submitted to the tripartite discussion actually gave effect to the essential points concerning the duration of maternity leave and the payment of benefits.

A Workers' member of Colombia recalled that already in 1983 a Government representative had stated before this Committee that the Convention would be fully applied in practice within four years. These four years had gone by and no project had yet been presented to the Parliament. Thus, a group of women workers recently went to the Office of the General Secretariat of the Ministry of Labour to submit a draft Bill prepared by the workers' legal advisers. In fact, there was no political will to apply the Convention because the social usefulness of maternity was not recognised. Maternity was throught of as a problem which only concerned women whereas, in reality, all society was concerned. She appealed for concrete measures to be taken at the level of the ILO to ensure that the Convention be effectively applied in Colombia.

A Workers' member of Spain associated himself fully with the statement made by the Workers' member of Colombia.

Another Workers' member of Colombia stated his indignation at the ease with which the successive Governments of Colombia had violated ILO Conventions and Recommendations, in particular this Convention. The various Government representatives who had referred to the adoption of the draft Bill on several occasions before this Committee had not told the truth. The institutional violence in his country could not be invoked to avoid the commitments under taken at the international level. The ILO Convention on maternity protection was not applied and neither were the provisions of the labour Code which provided for leave of eight weeks. Women workers in certain zones were not recognised for social benefits and when a women was on maternity leave she was obliged to pay her replacement in order to save her job. All these facts had been denounced several times before the Ministry of Labour without success. He insisted that the present Committee fix an imperative deadline for Colombia to respect the provisions of the Convention.

The Employers' members associated themselves with the statement made by the Workers' members. The Convention had not been fully applied in the country for quite some time. A draft Bill had been elaborated but the Government hesitated to present the text to parliament. Since 1980, the questions have been examined four times before this Committee which had shown its understanding of the serious problems, in particular economic problems, which rendered the implementation of this Convention more difficult. They wondered, however, if it was justified to make the progressive introduction of the necessary amendments upon the ratification of Convention No. 103 which would impose even greater obligations on the Government. It was, nevertheless, a political decision which it was up to the Government to take. The Government representative had indicated in a relatively vague manner that the draft Bill would be submitted to Parliament if need be. While emphasising that it was up to the Government, and then Parliament, to take the necessary decisions, the Employers' members noted that the obligations of the Convention were clearly not fulfilled. They also expressed the hope that national legislation and practice would be brought into conformity with the Convention, as soon as possible, which had been ratified by Colombia 57 years ago.

A Government representative confirmed his Government's hesitation to present the draft to Parliament, but it had not been a long time since this draft came into existence and it was presented to the National Labour Council because it was a problem which concerned not only the Government but also the workers and employers. Furthermore, measures had been taken to improve social security such as the improvement of the system of compensation in case of dismissal, the right of adoptive mothers to enjoy the same benefits as those for natural mothers, and the extension of the scope of application for social security. If the draft was on hold, it was because the employers had taken a certain position with regard to the text. The participation of women labourers in the labour market was very high. Furthermore, a process should not be begun if women were to risk losing their jobs or if their access to employment would be limited in the future. Measures had been taken as indicated by the draft Bill which had been prepared and which was the object of consultations so as to ensure that it was acceptable, rather than being implemented in a unilateral manner and thus running the risk of committing injustices.

Another Government representative of Colombia emphasised that the Government had made a commitment before this Committee to present a draft Bill extending maternity leave from eight to 12 weeks. This draft Bill should be progressively applied, maternity leave being increased each year by one week until full application of the Convention was achieved. At the National Labour Council, employers' representative had indicated that, without wanting to oppose the submission of the draft to Parliament, they could not make the commitment to recruit women workers in the security to those women workers presently employed. Faced with such a situation, the Government had had to proceed with a social analysis of the situation and had abstained from submitting the draft Bill to Parliament. It would be interesting therefore to hear the opinion of the Employers' representatives. Nevertheless, his Government respected its commitments; if there was a political will on the part of the employers not to change the employment situation of women in Colombia's labour market, the Government would submit the draft Bill to Parliament as it had promised to do before this Committee.

A Workers' member of Venezuela declared his full solidarity with the position adopted by the Workers' members of Colombia, independently of the fact that all Latin America faced the same problems.

The Employers' members, while judging the last statements of the two Government representatives very interesting, emphasised that the Government could not evade its responsibility. Certainly all decisions implied that positive and negative consequences which could result had to be taken into consideration. That was the art of politics, to try and eliminate or to reduce negative effects by complementary measures. This was a decision that had to be taken by the Government and could not be transferred to this Committee.

A Workers' member of Colombia insisted on the fact that the explanations given by the Government representatives were not satisfactory. He refuted, in particular, the argument according to which the extension of maternity leave was, in fact, paid by social security and not directly by the employer. It was not clear, therefore, how an enterprise would be affected by the fact a women worker would benefit from a few extra weeks of maternity leave.

A Workers' member of Uruguay insisted on the Government's obligation to take measures to adopt legislation extending maternity leave, in conformity with the provisions of the Convention ratified over fifty years ago, even if the employers continued to present objections.

A Workers' member of Brazil expressed his surprise that, despite the promises made on several occasions to extend maternity leave to 12 weeks, the Convention ratified in 1933 had not yet been implemented. He noted that, since 1934 in Brazil, women workers enjoyed 12 weeks of maternity leave which had been raised to 120 days as of the adoption of the new Constitution even though in Brazil, as in Colombia, it was the social security system which financed maternity leave and the cost did not have to be supported by the employers. In the name of all Brazilian women workers, he declared himself in solidarity with the workers of Colombia in their struggle for the improvement of conditions for women workers and expressed the hope that concrete measures would be taken.

The Workers' members emphasised the seriousness of the situation. It seemed nevertheless, after the replies made by the Government representative, that here was a political will to implement the Convention as could be noted by the draft Bill submitted to the National Labour Council. Therefore, the Committee had to insist that the Government take the necessary measures without further delay. If again next year it had to be noted that nothing had yet been done, the Committee would then have to mention this case in the appropriate section of its report.

A Government representative indicated that it was not because the employers were opposed to the draft Bill that the Government would not present it to Parliament. The Government had confidence in the consultation process and would try to find a solution to this problem.

Another Government representative expressed the hope that the employers would demonstrate their understanding and that with their help and the help of the workers' organisations, the draft Bill would be adopted and fully applied and that the situation of women in the labour market would continue to improve as it had in the past.

The Committee took note of the information communicated by the Government. It recalled that this quesion had been discussed in this Committee on several occasions. It expressed its disappointment at the situation which did not seem to show any progress. The Committee stressed the responsibility of the Government as concerned the adoption of legislative measures in order to ensure conformity with the Convention. It therefore called on the Government to take the necessary measures to adopt the appropriate legislation without delay.

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The Government has communicated the following information:

The Government is carefully considering in special committees the amendments necessary for the social changes as part of a wider-ranging and integrated programme to improve Colombians' conditions of life and work. The co-ordinated social policy in force requires global reforms adapted to the context.

Thus the Government is continuing to study how to bring national legislation closely in line with the Convention, especially in the light of general provisions on women and socio-economic reality.

In addition, a Government representative stated that the Committee of Experts' observations dealt with two aspects: the first on the duration of maternity leave and the second on benefits provided to mothers in the post-natal period. With regard to the Convention, the Government had stated to the ILO, and now restated, that one of the current administration's proposals was to bring the Labour Code into line with modern principles and exigencies of social security. In addition, the Government proposed to take measures aimed at achieving full coverage of the population in relation to social security. This implied the need to adopt a list of priorities providing for decisions which could be applied on a gradual basis. There was a guarantee of post-natal leave. The law provided for a total of eight weeks of leave, with a guaranteed leave of six weeks counting from the birth of the child. Maternity was also the object of other collateral benefits, among which could be mentioned three principal ones: (1) six months for nursing, counted from the termination of maternity leave, during which the women worker could work two hours less per day to nurse her child; (2) child-care centres and family care, administered by the Colombian Institute of Family Welfare in which it was possible to leave a child in good hands, free of charge or for a modest fee. while the worker went to work; and (3) administrative procedures concerning protection against dismissals, even justified ones. All of this fell within the framework of Convention No. 111, establishing non-discrimination against women, which Colombia had adopted in 1969. The Government representative stated in addition that in 1986, section 236 of the Labour Security Code had been amended to provide that the benefits provided to biological mothers be extended to mothers who had adopted children of up to 7 years of age, i.e. the provision of paid leave of eight weeks, protection in relation to dismissals and indemnities. But other additional measures had been taken, as follows: extension of social security entitlement to the family members of direct beneficiaries, whereas in the past only pregnant women and children up to the age of 1 year had been covered. These benefits had now been extended to the woman or wife, to children up to the age of 18 (or 25 if they have not completed their studies) and to persons who were temporarily incapacitated. Self-employed workers and with low incomes had also been linked to the social security scheme and social security had been provided for domestic workers, with a hefty subsidy from the State, and for members of religious orders. The geographical area had been extended to cover additional zones and the rules governing industrial diseases and accidents had been expanded. These decisions would permit 6.5 million beneficiaries to be covered by 1990, as compared with the 3 million covered when the present administration took office. In addition, present Government intended to extend social security benefits to the entire population, whereas it only covered 16 per cent of the economically active population at the moment. It was important to note that because of scarce resources in both the public and private sectors, the Government had to set priorities. Other measures, such as protection for under-age workers and workers engaged in mining, as well as the expansion of the occupational diseases which were covered, had contributed to an improvement in the spectrum covered by social security and the protection of women. The Government representative said that the Government was making efforts to put into place a financial structure which would permit recognition of the entitlement to benefits and their payment during the period of leave. These benefits were established, but their recognition and payment on time still posed difficulties. This plan of financial structuring had made it possible for employees in the private sector to have their entitlement to benefits determined immediately; for public employees it was projected that this would be possible at the latest within 15 days of the expenses having been incurred. He explained that this was a matter that had the Government's attention; it should be understood that due to the necessity of establishing priorities concerning social security and due to the high level of unemployment, it would not be desirable to establish a scheme which produced still more unemployment among working mothers because of the impossibility of providing for all the benefits required. But all the directors of the Social Security Institutes were studying the situation in the hope of finding a lasting solution soon.

The Workers' members thanked the Government representative for the information provided. He had spoken of an ambitious plan for the social security system; it was of course desirable to have a system which could provide all workers' insurance in case of unemployment and sickness. With regard to maternity protection, this Convention, which had been ratified in 1933, called for 12 weeks of maternity leave, six weeks prior to confinement and six weeks following it. When this case was under discussion in 1983, the Government had made promises to add one week's additional maternity leave per year to arrive at a total of 12 weeks in a four-year period. Since then, however, the total had remained at eight weeks. The promise should be kept and measures should be taken. The Workers' members were interested in the ILO study mission to be sent to Colombia in September 1988. They hoped it would deal with the question under discussion and not only with freedom of association, and that it would involve contact with employers' and workers' organisations as well as with the Government. They looked forward to seeing social progress in relation to the general application of Conventions in this country.

The Employers' members recalled that the Government had not yet fulfilled the requirements of the Convention, requiring six weeks of leave prior to confinement and six weeks afterwards. It had been stated in the Committee of Experts' report that amendment of the Labour Code was under consideration, with far-reaching aims in many fields. The Government representative had spoken of a number of plans which did not necessarily deal with maternity protection. Regarding the leave period, the Government representative had carefully indicated that, for the time being, the Government was not in a position to comply entirely with the provisions of the Convention because the social security problems involved were manifold and interlinked with economic and financial matters which as a whole could only be solved on a progressive basis. The Employers' members understood that social policy in this field was an expensive affair, but they considered it a step backward that the assurance given by the Government in 1983, namely to adjust the maternity leave provisions on a step-by-step basis, had not been repeated in the current discussion. They expressed the hope that, more than 50 years after ratification, the requirements of this Convention would be put into actual practice, even if on a step-by-step basis. But the first step still had to be taken.

The Worker member of Colombia stated that the explanations provided by the Government representative of his country had corresponded to the actual situation under Colombian labour legislation. But he noted that although the Government did have good intentions to resolve the situation, Colombian workers and other workers in Latin America unfortunately always heard the same type of information year after year. The constant changes in government which occurred in Colombia were prejudicial to the workers, with one government promising things for four years and four years later another government coming in, which meant a change at the ministerial level with prejudicial repercussions for workers' rights. Making promises which were not kept created rising mistrust among the workers with regard to bringing labour legislation into conformity with international labour Conventions and Recommendations. The workers acknowledged the Government's good faith but in Colombia another ministerial crisis was looming, which meant that they would be facing promises from a new minister who did not know the situation. Years had passed in this way, with no solutions to problems found. The workers were concerned about this; besides the problem of 12 weeks' maternity leave, there were other ILO Conventions and Recommendations which were not ratified or, if they have been ratified, the legislation has not been brought in conformity with the dispositions of the Convention; this was detrimental to the rights of workers in the country. In conclusion, the mission which would go to Colombia soon should really check into the situation and seek solutions to these problems.

The Workers' members recognised that a rapid turnover in governments posed difficulties for durable and lasting work. But when one government made promises to make improvements, including legislative changes, the government succeeding it should not go back on this.

The Government representative expressed interest in the comments which had been made and reiterated that his Government had the best intentions with regard to extending social security coverage within the near future. He also reiterated that specific benefits were one of the principal concerns of the Government and that the matter was now under study. He stated that in the current administration, which was strong from a technical and methodological viewpoint, changes at the ministerial level did not mean changes in fundamental policy. In relation to the observations made by the spokesman of the Workers' Group at the Committee, two comments were necessary: firstly, an explanation of the situation in Colombia, which was going through serious difficulties but which the Government had every intention of resolving, had been presented yesterday in the plenary session of the Conference; secondly, the Government had accepted with pleasure the experts' visit planned for September. This would present an excellent opportunity to study the situation of trade unions in Colombia and to analyse freedom of association and industrial relations and to listen to the advice offered by the mission.

The representative of the Secretary-General confirmed that the mission which was to visit Colombia soon was not in relation with the application of Convention No. 3. The high-level direct contacts mission would examine cases pending before the Committee on Freedom of Association and questions involving application of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87).

The Committee noted the written and oral explanations supplied by the Government. In view of the serious shortcomings which had been the subject of comments by the Committee of Experts for a number of years, the Committee expressed its concern and urged the Government to take the necessary measures in the near future and with the assistance of the ILO to ensure the full application of the Convention, which had been ratified more than 50 years ago, and to report on the progress made.

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The Committee notes the Government’s indication in its report that it promulgated Acts Nos 1822/2017 and 2114/2021, promoting appropriate early childhood care and amending the corresponding sections of the Labour Code, increasing the period of maternity and paternity leave and also establishing shared parental leave and part-time flexible parental leave.

Article 3(b) of the Convention. Duration of prenatal leave. The Committee notes the Government’s indication in reply to its previous comments that the adoption of Act No. 1822/2017 amended section 236 of the Labour Code to extend the period of maternity leave to 18 weeks, up to two weeks of which can be taken before the date of childbirth. The Committee notes the Government’s indication that Colombia has attached more relevance to the period of postnatal leave with the aim of facilitating family integration and the recovery of the mother’s health and, in the event that the worker requires prenatal leave in excess of two weeks, she is covered by social security under the heading of sick leave. The Committee welcomes the positive modifications relating to the extension of maternity leave. In this context, the Committee requests the Government to provide information on any additional measures aimed at ensuring that pregnant women can be absent from work up to six weeks before the presumed date of childbirth, in accordance with the conditions established by Article 3(b) of the Convention.

Article 3(c). Provision of benefits to women who do not fulfil the conditions for entitlement to such benefits. The Committee takes note of the information provided by the Government in reply to its previous comments, particularly of the ruling T-1223-08 handed down by the Constitutional Court of Colombia, according to which, when pregnant workers have not paid social security contributions for ten weeks or less during the entire period of pregnancy, they shall receive full maternity cash benefits and, if contributions have not been paid for more than ten weeks, cash benefits shall be paid proportionally according to the number of weeks contributed in relation to the period of pregnancy. The Committee also notes that, regarding the employer’s liability in cases of non-contribution or late contributions, maternity cash benefits are granted in full provided that the debt was paid with interest before the date of confinement. In case of persistent debt, late payments rejected by the social security system or non-compliance with any of the legal requirements, the Committee notes that the employer becomes directly liable for the payment of maternity cash benefits.

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Article 3(b) of the Convention. Duration of prenatal leave. The Committee notes the adoption of Act No. 1468, dated 30 June 2011, amending various sections of the Labour Code respecting maternity leave (duration, remuneration, premature and multiple births, prenatal and postnatal leave, prohibition of dismissal). It notes that under new section 236(3)(c), the medical certificate has to indicate the day from which leave is to begin, taking into account that it should commence at least two weeks before childbirth. The Committee also notes that new section 236(7)(a) provides that prenatal maternity leave shall be two weeks prior to the expected duly certified date of childbirth, with the possibility of transferring one of the two weeks until after childbirth if the mother so wishes. Noting this discrepancy, the Committee requests the Government to indicate whether the woman can benefit from prenatal leave of six weeks as provided for in Article 3(b) of the Convention.

Article 3(c). Provision of benefits to women who do not fulfil the conditions for entitlement to such benefits. The Committee notes that under the terms of sections 1 and 2 of Decision No. 414 of 11 May 2009, health entities (EPS) and compulsory compensation entities (EOC) shall recognize and pay maternity leave solely to contributing persons insured under the contributory scheme of the General Social Security Health System who are entitled to such benefits and providing that they have complied, throughout the pregnancy with the payment of all contributions due, including any interest for late payment. Section 3(2) of Decree No. 47 of 19 January 2000 specifies that, to receive financial benefits related to maternity leave the woman shall, as a contributing insured person, have paid contributions without interruption to the system throughout the pregnancy period. The Government adds that, in the absence of such payment, the employer is required to cover the benefits under the same conditions as they would have been provided by the EPS. Furthermore, under section 63 of Decree No. 806 of 30 April 1998, women who are not entitled to benefits under the social security system, as they have not completed the nine months of contributions required, shall receive financial benefits paid by employers. Finally, section 25(3) of Decree No. 1938 of 1994 makes the receipt of financial maternity benefits subject to compliance with a minimum period of contribution of 12 weeks prior to childbirth. The Committee requests the Government to: (1) specify the minimum period of contribution required to receive maternity benefits: nine months, 12 weeks prior to childbirth, or the whole period of pregnancy; (2) explain how it is possible for women workers to pay contributions during these periods if their maternity leave has to begin six weeks prior to childbirth (Article 3 of the Convention); and (3) confirm that it is the employer who is required to pay maternity benefits when women workers have not completed these contribution periods. Furthermore, emphasizing that the failure of the employer to pay contributions must not deprive the woman of her right to receive benefits, the Committee requests the Government to confirm that: (1) the employer is responsible for the payment of contributions on behalf of women workers employed by them; and (2) in cases where the woman employee does not receive financial benefits on the grounds of failure to pay contributions, the employer is required to pay the benefit instead of the social security institution.

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Article 3(c) of the Convention. Benefits in case of late confinement. In reply to the Committee’s previous comments, the Government reiterates that, where this is necessitated by their medical condition, pregnant women are granted additional leave in the form of remunerated sick leave. The Committee wishes to observe in this respect that this provision of the Convention seeks to ensure that, whenever confinement takes place later than initially expected, women on maternity leave should continue to receive benefits up to the date on which the confinement actually takes place, as well as for the six following weeks. The Committee would therefore be grateful if the Government would indicate whether in cases of late confinement a woman who has started her maternity leave six weeks before the estimated date of confinement, would be entitled to receive maternity or sickness cash benefits up to and until the end of the sixth week following the actual date of her confinement. Please also indicate the relevant provisions in this respect.

Benefits granted to women who do not fulfil the qualifying conditions. The Government indicates that women who do not qualify for benefits under the social security system because they have not made the full contribution for nine months, required by section 63 of Decree No. 806 of 30 April 1998, receive cash benefits paid by their employers. The Committee wishes to recall in this respect that the Convention provides that benefits sufficient for the full and healthy maintenance of mother and child need to be provided either out of public funds or by means of a system of insurance. This provision aims at protecting women in the labour market from gender discrimination in, inter alia, access to employment, and prohibits the imposition of liability on employers for the cost of benefits due to their women employees. The Committee therefore asks the Government to re‑examine the issue and to indicate in its next report the measures taken or envisaged in order to bring the national legislation into conformity with the Convention.

Application of the Convention in practice. Extension of the General Social Security System to all women employees. The Committee notes the information provided by the Government regarding the extension of the General Social Security System in Health to the entire country as well as the statistics on the number of women workers entitled to maternity benefits granted under the Compulsory Health Plan and the General Social Security System in Health (both under the contributory and the subsidized schemes). It also notes that, according to the information provided by the Government, the Social Security Act does not discriminate between public and private employees as regards, inter alia, the right to maternity benefits. It invites the Government to continue providing information in its future reports on the process of extension of the coverage of the General Social Security System in Health, and to indicate, in particular, the extent to which such extension has granted all women working in public or private industrial or commercial establishments the protection guaranteed by the Convention in case of maternity.

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The Committee notes that the Government’s report contains no reply to previous comments. It hopes that the next report will include full information on the matters raised in its previous direct request, which read as follows:

1. Article 3(c) of the Convention. (a) In its previous comments, the Committee drew the Government’s attention to the need to introduce a provision to allow the extension of the prenatal period of leave in cases where confinement occurs after the presumed date of confinement. The Government previously indicated that, in practice, where complications resulting from pregnancy arise before the date of confinement, it was normal for doctors to certify the woman unfit for work for the requisite number of days. The Committee notes that, in its last report, the Government once again refers to the possibility of taking sick leave, although this provision of the Convention provides for an extension of the maternity leave until the actual date of confinement in the case of a mistake in estimating the actual date of confinement; during the period of that extension, the worker concerned must be paid the maternity benefits to which she is entitled to cover loss of earnings. The Committee therefore hopes that the Government will re-examine this question and indicate any progress made in ensuring better application of this provision of the Convention.

(b) The Committee notes that under section 11(2) of Decree No. 1938 of 5 August 1994, the compulsory health scheme provides maternity cash benefits determined by the Ministry of Health. The Committee requests the Government to specify the amount of such cash benefits paid during maternity leave and their duration. Please also indicate any relevant legislative provisions in this area.

The Committee also notes that under section 25(3) of Decree No. 1938, entitlement to cash benefits during maternity leave is subject to a minimum period of contributions of 12 weeks before the date of confinement, although the Convention does not specify any such condition. Under these circumstances, the Committee requests the Government to indicate the manner in which women who do not meet this condition can be assured of the protection provided by the Convention in respect of maternity benefits.

2. With reference to the Committee’s previous comments concerning section 19 of Legislative Decree No. 3135 of 1968 and section 33 of Decree No. 1848 of 1969, concerning the length of maternity leave for public sector employees, the Government indicates that these provisions are regarded as having been tacitly repealed by section 34 of Act No. 50 of 1990 amending section 236 of the Labour Code inasmuch as this section applies to women employed in the public sector. The Government also indicates that these provisions will be amended as part of the next reform of the Rules governing public service employees and social benefits. The Committee notes this information and requests the Government to indicate in its next reports any progress made in this regard.

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The Committee notes that the Government’s report contains no reply to previous comments. It must therefore repeat its previous observation which read as follows:

1. Article 3(a) of the Convention. With reference to its previous comments, the Committee notes the adoption of Decree No. 936 of 1996 respecting section 236(1) of the Labour Code. The Committee notes with satisfaction that, in accordance with this provision of the Convention, at least six weeks of the worker’s paid maternity leave must be taken after confinement, even if the worker chooses to give one week of her maternity leave to her spouse.

2. With reference to its previous comments concerning the extension of the territorial coverage of the social security scheme, the Committee notes with interest the adoption of Decree No. 1298 of 22 June 1994 establishing the social security system. The Committee notes in particular that under section 39 of this Decree, from the year 2000 onwards all persons will be required to join the General Social Security System in Health on a contributory or subsidized basis, and shall thus become entitled to all the benefits provided by the Compulsory Health Plan, including maternity benefits.

The Committee takes note of this information and hopes that the implementation of the General Social Security System will allow coverage of all the women employees covered by the Convention in the near future. The Committee would be grateful if the Government would provide detailed information on the extension in practice of the coverage of the General Social Security System in Health to the entire country, and statistics on the number of women workers covered by the Convention who are entitled to maternity benefits guaranteed under the Compulsory Health Plan, as a proportion of all the women employees in industrial or commercial establishments, whether public or private, as defined in Article 1 of the Convention, read in conjunction with Article 3.

3. The Committee also draws the Government’s attention to certain points which it is raising in a direct request.

The Committee hopes that the Government will make every effort to take the necessary action in the very near future.

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1. Article 3(c) of the Convention. (a) In its previous comments, the Committee drew the Government's attention to the need to introduce a provision to allow the extension of the prenatal period of leave in cases where confinement occurs after the presumed date of confinement. The Government previously indicated that, in practice, where complications resulting from pregnancy arise before the date of confinement, it was normal for doctors to certify the woman unfit for work for the requisite number of days. The Committee notes that, in its last report, the Government once again refers to the possibility of taking sick leave, although this provision of the Convention provides for an extension of the maternity leave until the actual date of confinement in the case of a mistake in estimating the actual date of confinement; during the period of that extension, the worker concerned must be paid the maternity benefits to which she is entitled to cover loss of earnings. The Committee therefore hopes that the Government will re-examine this question and indicate any progress made in ensuring better application of this provision of the Convention.

(b) The Committee notes that under section 11(2) of Decree No. 1938 of 5 August 1994, the compulsory health scheme provides maternity cash benefits determined by the Ministry of Health. The Committee requests the Government to specify the amount of such cash benefits paid during maternity leave and their duration. Please also indicate any relevant legislative provisions in this area.

The Committee also notes that under section 25(3) of Decree No. 1938, entitlement to cash benefits during maternity leave is subject to a minimum period of contributions of 12 weeks before the date of confinement, although the Convention does not specify any such condition. Under these circumstances, the Committee requests the Government to indicate the manner in which women who do not meet this condition can be assured of the protection provided by the Convention in respect of maternity benefits.

2. With reference to the Committee's previous comments concerning section 19 of Legislative Decree No. 3135 of 1968 and section 33 of Decree No. 1848 of 1969, concerning the length of maternity leave for public sector employees, the Government indicates that these provisions are regarded as having been tacitly repealed by section 34 of Act No. 50 of 1990 amending section 236 of the Labour Code inasmuch as this section applies to women employed in the public sector. The Government also indicates that these provisions will be amended as part of the next reform of the Rules governing public service employees and social benefits.

The Committee notes this information and requests the Government to indicate in its next reports any progress made in this regard.

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1. Article 3(a) of the Convention. With reference to its previous comments, the Committee notes the adoption of Decree No. 936 of 1996 respecting section 236(1) of the Labour Code. The Committee notes with satisfaction that, in accordance with this provision of the Convention, at least six weeks of the worker's paid maternity leave must be taken after confinement, even if the worker chooses to give one week of her maternity leave to her spouse.

2. With reference to its previous comments concerning the extension of the territorial coverage of the social security scheme, the Committee notes with interest the adoption of Decree No. 1298 of 22 June 1994 establishing the social security system. The Committee notes in particular that under section 39 of this Decree, from the year 2000 onwards all persons will be required to join the General Social Security System in Health on a contributory or subsidized basis, and shall thus become entitled to all the benefits provided by the Compulsory Health Plan, including maternity benefits.

The Committee takes note of this information and hopes that the implementation of the General Social Security System will allow coverage of all the women employees covered by the Convention in the near future. The Committee would be grateful if the Government would provide detailed information on the extension in practice of the coverage of the General Social Security System in Health to the entire country, and statistics on the number of women workers covered by the Convention who are entitled to maternity benefits guaranteed under the Compulsory Health Plan, as a proportion of all the women employees in industrial or commercial establishments, whether public or private, as defined in Article 1 of the Convention, read in conjunction with Article 3.

3. The Committee also draws the Government's attention to certain points which it is raising in a direct request.

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1. Article 3(a), (b) and (c) of the Convention. (a) With reference to its previous comments, the Committee notes with interest the Government's statement that it is examining the possibility of issuing regulations under section 34 of Act No. 50 of 1990 amending section 236 of the Labour Code, in order to provide for compulsory postnatal leave of at least six weeks, in accordance with Article 3(a) of the Convention. The Government also states that, as a rule, the medical certificate attesting incapacity for work which gives entitlement to maternity leave takes effect from the date of confinement, which enables women to take their full maternity leave of 12 weeks after confinement. The Committee therefore hopes that the Government will have no difficulty in completing the national legislation by introducing a provision which expressly prohibits women workers from working for a period of six weeks after their confinement.

(b) With regard to the need to make legal provision for the extension of prenatal leave when the confinement takes place after the estimated date, in accordance with Article 3(c) of the Convention, the Committee notes from the Government's report that the usual practice adopted by physicians in special situations prior to confinement (complications arising from pregnancy) is to declare the woman concerned unfit for work for the requisite number of days. The Committee again expresses the hope that when the above-mentioned regulations are issued under section 34 of Act No. 50 of 1990, the Government will not fail to bring the national legislation into full conformity with the Convention on this point.

(c) The Committee recalls that section 236 of the Labour Code, as amended (and section 16 of Decree No. 770 of 1975 respecting health and maternity insurance, as amended by Decree No. 960 of 12 April 1991), provides that women may reduce their maternity leave to 11 weeks by ceding the remaining week to their spouse or companion so that he can provide them with the necessary care during confinement and in the initial post-confinement phase. In its report, the Government states that since such a reduction of maternity leave is optional and women are free to resort to it or not, this provision is not at variance with the Convention. While noting that the reduction of maternity leave is purely voluntary, the Committee is bound to point out that if a woman cedes one week of her maternity leave to her spouse during the initial post-confinement phase, this could, in certain cases, reduce her postnatal leave to less than the compulsory six weeks prescribed by the Convention. It therefore hopes that an appropriate solution will be found to this problem when the regulations of section 34 of Act No. 50 are adopted.

The Committee asks the Government to report on progress made in the matters referred to above.

2. With reference to its earlier comments, the Committee notes that, in the view of the Civil Service Administrative Department, section 34 of Act No. 50 of 1990, under which maternity leave of 12 weeks also applies to women workers in the public sector, tacitly amends section 19 of Legislative Decree No. 3135 of 1968 and section 33 of Decree No. 1848 of 1969 with regard to the length of maternity leave in the public sector. The Committee hopes that when the legislation is next reviewed these provisions will be brought formally into line with section 34 of Act No. 50 so as to avoid all ambiguity.

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With reference to its previous comments on the extension of the territorial coverage of the social security scheme, the Committee notes with interest that a Bill to make substantial amendments to the present social security scheme will be submitted to the Congress of the Republic at its present session. It hopes that the Bill will be adopted shortly and that it will enable the social security scheme to be extended throughout the national territory and to all women workers covered by the Convention, particularly in respect of maternity protection. The Government is asked to indicate any progress made in this respect.

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With reference to its observation and to its previous direct request, the Committee wishes to draw the Government's attention to the following points:

1. Article 3(a), (b) and (c) of the Convention. (a) Section 236 of the Labour Code, as amended by Act No. 50 of 1990, provides that women workers are entitled to maternity leave of 12 weeks, without, however, specifying that a woman shall not be permitted to work during the six weeks following her confinement, as set out in Article 3(a) of the Convention.

(b) Section 236 of the Labour Code, as amended, contains no provision that lays down, in accordance with Article 3(c) of the Convention, that pre-natal leave shall be prolonged when the confinement takes place after the presumed date of confinement.

(c) Section 236, as amended, provides that women may reduce their maternity leave to 11 weeks by ceding the remaining week to their spouse or companion so that he can provide them with the necessary care during confinement and in the initial post-confinement phase. Similar provision is introduced into section 16 of Decree No. 770 of 1975 relating to health and maternity insurance, as amended by Decree No. 960 of 12.4.91. While noting the possibility set out in the above provisions of granting parental leave to the father, the Committee however wishes to draw the Government's attention to the fact that the grant of such leave cannot be imputed upon of the period of maternity leave provided for by the Convention.

The Committee therefore reiterates its hope that the Government will be able to indicate the measures that have been taken or are envisaged to bring the national legislation - section 236 of the Labour Code and section 33 of Decree No. 1848 of 1969, which are applicable to women working in the public sector, as well as section 16 of Decree No. 770 of 1975 as amended by Decree No. 960 of 12.4.91 - into conformity with the above points.

2. The Committee also hopes that it will be possible to take measures to formally bring section 33 of Decree No. 1848 of 1969 into conformity with section 34 of Act No. 50 of 28 December 1990, which provides for maternity leave of 12 weeks and which specifies that this protection also applies to women working in the public sector.

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1. Article 3(c) of the Convention. The Committee notes with satisfaction the adoption of Decree No. 960 of 12 April 1991 amending section 16(b) of Decree No. 770 of 1975 relating to health and maternity insurance, so as to align, in conformity with this provision of the Convention, the duration of maternity benefits with that of maternity leave (12 weeks), as set out in section 236 of the Labour Code amended by section 34 of Act No. 50 of 1990.

2. The Committee reiterates its hope that the Government's next report will contain information on any progress achieved in extending the territorial coverage of the social security scheme.

3. The Committee however wishes to draw the Government's attention to certain points that it is raising in a direct request.

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With reference to its observation, the Committee wishes to draw the Government's attention to the following points:

Article 3(a), (b) and (c) of the Convention. (a) The Committee notes that section 236 of the Labour Code, as amended by Act No. 50 of 1990, provides that women workers are entitled to maternity leave of 12 weeks, without, however, specifying that a woman shall not be permitted to work during the six weeks following her confinement, as set out in Article 3(a) of the Convention.

(b) Section 236 of the Labour Code, as amended, contains no provision that lays down, in accordance with Article 3(c) of the Convention, that pre-natal leave shall be prolonged when the confinement takes place after the estimated date of confinement.

(c) Section 236, as amended, provides that women may reduce their maternity leave to 11 weeks by ceding the remaining week to their spouse or companion so that he can provide them with the necessary care during confinement and in the initial post-confinement phase. While noting with interest the possibility set out in section 236 of granting parental leave to the father, the Committee however wishes to draw the Government's attention to the fact that the grant of such leave cannot be imputed upon of the period of maternity leave provided for by the Convention.

The Committee therefore hopes that the Government will be able to indicate the measures that have been taken or are envisaged to bring the national legislation - section 236 of the Labour Code and section 33 of Decree No. 148 of 1969, which are applicable to women working in the public sector - into conformity with the above points. It also hopes that it will be possible to take measures to formally bring section 33 of Decree No. 148 of 1969 into conformity with section 34 of Decree No. 50 of 1990, which provides for maternity leave of 12 weeks and which specifies that this protection also applies to women working in the public sector.

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1. Article 3(a) and (b) of the Convention (total duration of maternity leave). The Committee notes with satisfaction the adoption of Act No. 50 of 28 December 1990, section 34 of which amends section 236 of the Labour Code and provides for the right of women to maternity leave of 12 weeks, which makes it possible to give better effect to these provisions of the Convention. Furthermore, it notes that the extension of the maternity leave set out in section 34 above also applies to women working in the public sector.

The Committee however wishes to draw the Government's attention to certain points that it is raising in a direct request.

2. Furthermore, the Committee hopes that the Government's next report will contain information on the measures that have been taken or are envisaged to amend section 16(b) of Decree No. 770 of 1975, relating to health and maternity insurance, so as to align the duration of maternity benefits with that of maternity leave, as set out in section 236 of the Labour Code, as amended by section 34 of Act No. 50 of 1990.

3. Finally, the Committee hopes that the Government's next report will contain information on all progress achieved in extending the territorial coverage of the social security scheme.

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1. Article 3(a), (b) and (c) of the Convention. In reply to the Committee's previous comments, the Government indicates that the Ministry of Labour has prepared a Bill to approve the Maternity Protection Convention (Revised), 1952 (No. 103), which will amend section 236 of the Labour Code in order to increase the length of maternity leave up to 12 weeks. It adds, however, that in order to take into account the economic and social situation of the country and to avoid these measures prejudicing the participation of women on the labour market, it is proposed in the Bill that maternity benefits will start to be paid once Convention No. 103 comes into force, and that the benefits will be paid progressively, being extended by one week each year, until they attain 12 weeks. Finally, the Government states that it is envisaged that section 19 of Legislative Decree No. 3135 of 1968 will be amended together with section 33 of Decree No. 1848 of 1969, which is applicable to women workers in the public sector.

The Committee notes this information. It is bound, however, to remind the Government that the current legislation does not give full effect to Convention No. 3, which has been ratified by Colombia for more than 50 years, since no measure has yet been taken to bring section 236 of the Labour Code, and section 33 of Decree No. 1848 of 1969 into conformity with Article 3(a), (b) and (c) of the Convention. This legislation provides for maternity leave of eight weeks in all, whereas Article 3(a) and (b) provide that a woman may not be permitted to work during a period of six weeks after confinement and must have the right to leave her work on production of a medical certificate stating that her confinement will probably take place within six weeks. Furthermore, it follows from Article 3(c) that pre-natal leave should be extended when confinement takes place after the estimated date.

Given the importance of this question, which has been the subject of its observations for many years, the Committee trusts that the Government will be able to adopt the necessary measures in the near future to amend section 236 of the Labour Code and section 33 of Decree No. 1848 of 1969 in the manner indicated above. It also hopes that the Government will make every effort to amend section 16(b) of Decree No. 770 of 1975, relating to health and maternity insurance, so as to align the duration of maternity benefits with that of leave.

2. The Committee notes the information supplied by the Government as regards the territorial extension of the social security scheme. It also notes the information supplied by the Government in its reports on Conventions Nos. 12 and 17 concerning the same question, which illustrate, in particular, the progress achieved in extending the social security scheme and which report the Government's intention to cover the whole of the territory so as to extend social security to all the inhabitants in the country, as set out in the legislation. The Committee hopes that the Government will continue to supply information on any further territorial extension of the social security scheme. [The Government is asked to supply full particulars to the Conference at its 77th Session and to report in detail for the period ending 30 June 1990.]