Maternity Protection Convention, 1919 (No. 3) - Venezuela (Bolivarian Republic of) (RATIFICATION: 1944)

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The Committee notes the detailed information, including the statistics, sent by the Government in reply to its previous comments. It also notes the adoption of the Basic Act on labour and male and female workers (LOTTT) in April 2012 reinforcing maternity protection and employment stability for pregnant women and working mothers. In this respect, the Committee notes with satisfaction that section 335 of the LOTTT guarantees women workers special protection against dismissal from the start of their pregnancy and up to two years after childbirth, thus strengthening the protection provided for in Article 4 of the Convention.

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The Committee takes note of the detailed information, including statistics, provided by the Government in reply to its previous comments. While noting the adoption of new legislation which, inter alia, supplements the maternity protection system with a parenting protection system, the Committee wishes to draw the Government’s attention to the following points.

Articles 1 and 3(c) of the Convention. Extension of social security system throughout the whole country. In its 2007 and 2008 reports, the Government has not provided any information on the entry into force of the Organic Act on the social security system adopted on 20 December 2002. It merely refers, in the context of the extension of social security throughout the country, to the implementation of a series of social programmes called “missions”. These programmes are designed to reach out to the most remote geographical areas and guarantee that the poorest members of Venezuelan society should start receiving, in a relatively short period of time, benefits they no longer received under the traditional health scheme.

The Committee takes due note of this information, as well as of the efforts made by the Government to ensure that the population as a whole should have access to health services, particularly with respect to maternity. It believes that such measures, although they are able to make up for the lack of infrastructures in certain remote parts of the country relatively quickly, only represent one stage in the establishment – and sustainable development – of a social security system for the population as whole. The Committee hopes that the Government will be able to provide information in its next report on the progress achieved in this area, including measures taken for the entry into force of the Organic Act on the social security system of 2002, which is intended to guarantee the entitlement of all Venezuelan citizens resident in the national territory and all foreign nationals legally residing in the country to social security. The Government is also asked to provide updated statistics on the regions covered by the social security scheme, as well as on those which remain excluded from maternity benefits.

Article 4. Dismissal during maternity leave. In response to the Committee’s previous comments on this provision of the Convention, the Government points out that section 384 of the Organic Labour Act guarantees that women remain in their work during their pregnancy and up to one year after confinement. Indeed, they may only be dismissed on one of the grounds listed in section 102 of the Act, after the prior authorization of the Labour Inspectorate. The Government adds that, given that the dismissal of a woman worker on maternity leave is restricted by the provisions of the Convention, the employer is unable to dismiss the woman worker during maternity leave; the prior authorization of the Labour Inspectorate can only be requested for the remaining period guaranteed under section 384 mentioned above. It also points out that the Act on the protection of families, maternity and paternity, adopted on 20 September 2007, provides for a paternity leave of 14 days and also guarantees that fathers remain in their job for the year following the birth of their child.

While duly noting this information, the Committee hopes that, in order to avoid any ambiguity, necessary measures will be taken by the Government to clarify the provisions of section 384 of the Organic Labour Act so as to explicitly prohibit an employer from giving a woman worker notice of dismissal while she is absent from work on maternity leave, or at such time that the period of notice would expire during such absence.

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With reference to its observation, the Committee draws the Government’s attention to the following points.

Article 3(c) of the Convention. The Committee once again requests the Government to indicate in its next report the regulations issued under sections 64 and 67 of the Organic Act on the social security system establishing the legal framework for maternity cash benefits and determining, among other matters, the amount of such benefits and the period during which they shall be paid.

Article 4. With reference to the Committee’s previous comments, the Government reiterates that section 384 of the Organic Labour Act prevents any dismissal during the period of maternity leave. The Committee takes due note of this information. However, it notes that the above provision of the Organic Labour Act, although establishing the   in employment of women during their pregnancy and for one year following confinement, authorizes termination of employment during this period, with the prior agreement of the labour inspectorate, on one of the grounds enumerated in section 102 of the Act. The Committee once again hopes that, in order to avoid any ambiguity, the necessary measures will be taken to clarify the provisions of section 384 of the Organic Labour Act so as to explicitly prohibit an employer from giving a woman worker notice of dismissal while she is absent from work on maternity leave, or at such time that the notice would expire during such absence. The Committee would also be grateful if the Government would indicate whether, in practice, the labour inspectorate has been requested to authorize the dismissal of women workers during the protected period.

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Articles 1 and 3(c) of the Convention. In its previous comments, the Committee recalled the need to take all the necessary measures to extend in practice the social security system in relation to maternity benefits, for both medical care and cash benefits, throughout the national territory to ensure that all women workers employed in industrial or commercial enterprises, whether public or private, covered by the scope of application of the Convention, benefit from the protection afforded by this instrument. In practice, the Organic Act on the social security system of 6 December 2002 guarantees the right to social security for all Venezuelan citizens resident on the national territory and all foreign nationals legally resident in the country, although this right will only be implemented progressively following a transition period.

In its last report, the Government provides detailed information on the provision of medical care throughout the country. It indicates that the objective of the action taken by the Government is to provide better maternity protection, not only to women workers, but also to all of the population who were hitherto excluded, including in particular the indigenous population and housewives. Moreover, on 14 December 2004, the National Assembly adopted on first reading a new Bill on health and the national public health system, the objective of which is to organize the excercise of the constitutional right to health and access to health care, without discrimination of any sort, through the institutions of the public health system. With regard to health‑care establishments, the Government refers to the “Barrio Adentro” missions which are intended to establish a health system based, among others, on the principles of free and universal care. Through these missions it has been possible to establish, at the national level, a network of health care providers covering nearly 17 million persons throughout the country in some 8,500 consultations centres, involving around 13,000 doctors and 8,500 nursing auxiliaries. The services provided include pre- and postnatal care. The Government also refers to the establishment of ten people’s clinics, 30 integrated diagnosis centres and 30 integrated rehabilitation units which provide medical care free of charge with the priority objectives, among others, of decreasing maternal and infant mortality. Furthermore, the hospital network throughout the national territory has been strengthened and modernized. In total, there are around 299 hospital centres of various types in the country which will be regrouped in the near future under the title of people’s hospitals. The Government adds that it will provide information on all the changes made to the national legislation once the new social security system is operational following the transition period.

The Committee notes this information with interest and would be grateful if the Government would continue to keep it informed of the development of the health system in general and of care related to maternity in particular. It would also be grateful if the Government would provide statistical information on the implementation of the maternity protection scheme at the national level, with an indication of the parts of the territory in which the provision of medical care and maternity cash benefits could still give rise to difficulties.

Furthermore, as this information has not yet been provided by the Government, the Committee would also be grateful to be provided with: (i) statistical information on the number of women workers employed in public or private industrial or commercial establishments who are covered by comprehensive social security in relation to the total number of such women workers; (ii) statistical information on the payment of maternity cash benefits to women workers employed in public or private industrial or commercial establishments throughout the national territory, and region by region; and (iii) detailed information on the implementation in practice of the Organic Act on the social security system adopted in 2002, and copies of all laws and regulations adopted to give effect to the Act.

The Committee is raising certain other matters in a request addressed directly to the Government.

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With reference to its observation, the Committee draws the Government’s attention to the following points.

Article 3(c) of the Convention. Please indicate whether the General Regulations of the Social Insurance Act are still in force and, if so, specify whether section 143 has been amended to provide, in accordance with section 11 of the above Act, that the daily maternity benefit may not be less than the normal wage received by the worker the month prior to the beginning of her leave.

Article 4. With reference to the Committee’s previous comments on this provision of the Convention, the Government indicates that section 384 of the Organic Labour Act establishes the employment stability of women workers during pregnancy and for a period of one year following confinement by only authorizing their dismissal for one of the reasons enumerated in section 102 of the same Act and only with the prior approval of the labour inspector. The Government adds that the dismissal of a woman worker during her absence from work on maternity leave is restricted by the provisions of Article 6 of the Maternity Protection Convention (Revised), 1952 (No. 103); it specifies that, accordingly, during the period that the worker is absent from work on maternity leave, the employer is unable to dismiss her, as the prior authorization of the labour inspector can only be requested for the remainder of the period of employment stability provided for under section 384 above. The Committee takes due note of this information. It recalls that Convention No. 103 is no longer in force in Venezuela following its denunciation in 1985, but that Convention No. 3 contains in Article 4 a similar provision protecting women workers who are absent from work on maternity leave from dismissal. The Committee therefore hopes that, in order to avoid any ambiguity, the necessary measures will be taken to clarify the provisions of section 384 of the Organic Labour Act so as to explicitly prohibit an employer from giving a woman worker notice of dismissal while she is absent from work on maternity leave, or at such time that the notice would expire during such absence.

[The Government is asked to reply in detail to the present comments in 2006.]

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Articles 1 and 3(c) of the Convention. The Committee notes the report provided by the Government and the adoption on 6 December 2002 of the Organic Act on the social security system. With reference to the comments it has been making for many years on the scope of the social security system in practice, the Committee notes that section 4 of the new Act guarantees social security to all Venezuelan nationals living on the national territory as well as foreign nationals lawfully residing in the country. The Committee notes, however, that the Social Insurance Act remains applicable until the end of the transition period set for the entry into force of the new Organic Act (section 130 of the Organic Act) and that many regions of the country are still not covered by the social security system. Under these circumstances, it is bound once again to recall the need to take all the measures necessary as soon as possible to extend in practice the social security system in matters of maternity benefits, with regard to both medical care and cash benefits, throughout the national territory to ensure that all women workers employed in industrial or commercial enterprises, whether public or private, covered by the scope of application of the Convention, benefit from the protection afforded by this instrument.

Furthermore, the Committee requests the Government to provide statistics on the regions covered by the social security system and those which are still excluded with regard to maternity benefits. It also requests the Government to provide statistical information on the number of women workers employed in both public and private industrial and commercial enterprises who are covered by the full social security system in relation to the total number of such women workers.

Finally, the Committee would be grateful if the Government would provide detailed information in its next report on the application in practice of the Organic Act on the social security system adopted in 2002, and if it would provide a copy of all the legislative texts and regulations adopted to give effect to it.

[The Government is asked to reply in detail to the present comments in 2006.]

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Article 3(c) of the Convention. The Committee notes with interest that under the terms of section 11 of the Social Security Act, insured women are entitled during their maternity leave to medical benefits and to a daily allowance not less than the women's wages for the month immediately preceding the start of the leave. The Committee requests the Government to indicate whether measures have been taken or are planned to bring the provisions of section 143 of the General Regulations under the Social Security Act into conformity with the provisions of the aforementioned section 11.

Article 4. With reference to its previous comments, the Committee understands from the Government's reply that despite the irremovability provided for under section 384 of the Organic Labour Law of 1990 with regard to women workers during pregnancy and for a period of one year following confinement, a woman can still be dismissed during her maternity leave for one of the reasons set out under section 102 of the same Law following notification of the labour inspector, in accordance with the procedure defined under Title VII, Chapter II, of the 1990 Law. Under these circumstances, the Committee is bound to recall that under the terms of Article 4 of the Convention, it is unlawful for the employer to give a woman worker notice of dismissal during her absence on maternity leave or at such a time that the notice would expire during such absence. It hopes that the Government's next report will contain information on measures taken or planned with a view to giving full effect to this provision.

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Articles 1 and 3(c) of the Convention (coverage of the social security scheme). (a) With reference to its earlier comments, the Committee notes the intention of the Government to restructure the social security scheme and the discussions now under way on the adoption of a framework law to reform social security which should improve coverage for working mothers. At the same time, it notes that, according to data provided by the Government, many regions are still not covered by the full social security scheme. Under these circumstances, the Committee is bound to remind the Government once again of the need to take the necessary measures to extend the social security scheme, in particular maternity benefits, to all workers in all regions of the country to ensure that all women workers employed in industrial or commercial undertakings, private or public, enjoy the benefits provided for by the Convention. Such measures would appear to be all the more necessary given that, according to the Government's information, the special resolution envisaged under section 11 of the Social Security Act, as amended in 1991, introducing substitute maternity benefits in localities that are not covered by the social security or free medical assistance schemes has not yet been adopted.

The Committee requests the Government to continue to provide statistics on the regions, whether covered by the social security scheme or not, with regard to maternity benefits. It would also like the Government to provide statistics on the number of women workers employed in industrial and commercial undertakings who are fully covered by the social security scheme in relation to the total number of these workers.

(b) The Committee notes with interest the adoption of Decree No. 3.325 of 13 January 1994, which extends medical and cash benefits for temporary incapacity to persons employed by the national authorities, the federal states, the federal district or the autonomous regions, and to juridical persons under public law. It also notes certain collective accords provided by the Government in response to the Committee's earlier comments, in particular the first collective agreement for public employees (framework agreement) under the terms of which the national public authorities are required to take out insurance for their employees for hospitalization, surgery and maternity.

Given that section 1 of Decree No. 3.325 mentioned above provides for the gradual extension of insurance for medical and cash benefits to the public sector, the Committee requests the Government to indicate whether all women employees in public sector industrial and commercial undertakings are now entitled, in accordance with the Convention, to the medical and cash benefits provided in cases of maternity by the Social Security Act.

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Article 4 of the Convention (prohibition of dismissal of women who are public servants or employees). The Committee recalls that as a result of this provision of the Convention it is unlawful for the employer to give notice of dismissal to a woman worker during her absence on maternity leave or at such a time that the notice would expire during such absence. The Committee notes that the sole paragraph of article 384, read together with article 385 of the Organic Labour Law of 20 December 1990, provides for irremovability with regard to women workers on maternity leave. The Committee would like the Government to indicate if, during the period of maternity leave provided for in article 385, the worker may be dismissed immediately for one of the valid reasons laid down in article 102 of the Organic Labour Law upon the approval of the labour inspector, in conformity with the second sentence of article 384.

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Article 3(d) of the Convention (nursing breaks). The Committee notes with interest the information communicated by the Government in response to its previous comments in which the Committee pointed out the necessity of guaranteeing women public servants or employees who work in industrial or commercial establishments the right to nursing breaks of at least half an hour twice a day. In this respect, the Committee notes with satisfaction that article 393 of the Organic Labour Act, which provides for such nursing breaks, is applicable to public servants and employees by virtue of article 8 of the said Act.

Articles 1 and 3(c) (coverage of the social security scheme). (a) Referring to its previous comments, the Committee notes the adoption of the Act of 20 July 1991 partially reforming the Social Security Act. It notes in particular that, pending the extension of social security coverage to all inhabitants of the country, under article 2 of this Act, the protection of the mandatory social security scheme applies to permanent workers. Concerning other categories of workers, notably homeworkers, domestic workers and temporary or occasional workers, the application of the mandatory scheme will be determined by the executive authority. The Committee therefore requests the Government to indicate in its next report any measure taken or envisaged with a view to extending the social security scheme (maternity insurance) to all workers and all regions of the country in order that all categories of women workers employed in industrial or commercial undertakings, private or public (including public servants or employees), benefit fully from the protection provided for in the Convention. The Committee also requests the Government to indicate what regions are covered by the social security scheme (maternity insurance).

(b) The Committee notes with interest that article 4 of the Act of 20 July 1991 mentioned above provides that by a special resolution a substitute allowance in case of maternity may be established in localities not covered by the social security scheme or by free medical assistance. The Committee would request the Government to send the text of the special resolution once adopted.

(c) As regards women public servants or employees, the Committee notes the statement of the Government according to which despite the fact that these workers are not covered under the maternity insurance scheme by virtue of article 3 of the Social Security Act, 1967, as modified by the Act of 20 July 1991, they benefit none the less from hospitalization, surgery and maternity insurance (HCM) as well as from the necessary medical assistance given by the medical services existing in each ministry. The Committee requests the Government to indicate the relevant legislative provisions or regulations and to furnish the text.

Article 4 (prohibition of dismissal of women who are public servants or employees). Referring to its previous comments, the Committee notes with interest the decision mentioned by the Government in its report of the Supreme Court of Justice of 4 December 1985 which, based on articles 74 and 93 of the Constitution, grants the right of stability in their employment for pregnant workers who are public servants or employees, including those occupying positions to which appointments are made, and, consequently, ensures their right to full pre- and post-natal leave without discrimination.

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The Committee notes with regret that for the second time in succession the Government's report has not been received. It must therefore repeat its previous observation which read as follows:

With regard to Articles 1 and 3(c) of the Convention (coverage of the social security scheme) and Article 3(d) (rest periods for nursing mothers who are public servants or public employees), the Committee notes that the Government's report supplies no new information on the progress made with regard to the points raised in its previous comments. In this connection, the Committee wishes to point out yet again that certain categories of workers coming under the Convention are not yet covered by maternity insurance, since the social security scheme is not applicable to all workers or all regions of the national territory. The Committee again expresses the hope that this scheme will be extended shortly so that women employed in public or private industrial or commercial undertakings (including public servants or public employees), fully enjoy the protection provided for by the Convention. With particular reference to Article 3(d), the Committee can only repeat its previous request in the hope that the Government will be able to adopt the necessary measures in the near future to guarantee that the above-mentioned women workers are entitled to interrupt their work for at least half an hour twice a day to nurse their infants. The Committee requests the Government to provide information in its next report on progress made in this respect.

With regard to Article 4 (prohibition of dismissal of women who are public servants or employees), the Committee notes that the Government transmitted the text of its observation on this point to the National Congress in the hope that this might lead to the adoption of legislative measures in line with the Convention. The Committee trusts that the Government will be able to adopt the necessary measures to include in the national legislation a provision making it unlawful for employers to give notice of dismissal to this category of women workers who are absent on maternity leave or remain absent for a longer period as a result of late confinement or illness arising out of pregnancy or confinement, or to give this notice at such a time that it would expire during such absence.

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

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The Committee notes that the Government's report has not been received. It must therefore repeat its previous observation, which read as follows:

The Committee takes note of the Government's replies to its previous comments and wishes to point out the following:

With regard to Articles 1 and 3(c) of the Convention (coverage of the social security scheme) and Article 3(d) (rest periods for nursing mothers who are public servants or public employees), the Committee notes that the Government's report supplies no new information on the progress made with regard to the points raised in its previous comments. In this connection, the Committee wishes to point out yet again that certain categories of workers coming under the Convention are not yet covered by maternity insurance, since the social security scheme is not applicable to all workers or all regions of the national territory. The Committee again expresses the hope that this scheme will be extended shortly so that women employed in public or private industrial or commercial undertakings (including public servants or public employees), fully enjoy the protection provided for by the Convention. With particular reference to Article 3(d), the Committee can only repeat its previous request in the hope that the Government will be able to adopt the necessary measures in the near future to guarantee that the above-mentioned women workers are entitled to interrupt their work for at least half an hour twice a day to nurse their infants. The Committee requests the Government to provide information in its next report on progress made in this respect.

With regard to Article 4 (prohibition of dismissal of women who are public servants or employees), the Committee notes that the Government transmitted the text of its observation on this point to the National Congress in the hope that this might lead to the adoption of legislative measures in line with the Convention. The Committee trusts that the Government will be able to adopt the necessary measures to include in the national legislation a provision making it unlawful for employers to give notice of dismissal to this category of women workers who are absent on maternity leave or remain absent for a longer period as a result of late confinement or illness arising out of pregnancy or confinement, or to give this notice at such a time that it would expire during such absence.

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

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The Committee takes note of the Government's replies to its previous comments and wishes to point out the following:

With regard to Articles 1 and 3(c) of the Convention (coverage of the social security scheme) and Article 3(d) (rest periods for nursing mothers who are public servants or public employees), the Committee notes that the Government's report supplies no new information on the progress made with regard to the points raised in its previous comments. In this connection, the Committee wishes to point out yet again that certain categories of workers coming under the Convention are not yet covered by maternity insurance, since the social security scheme is not applicable to all workers or all regions of the national territory. The Committee again expresses the hope that this scheme will be extended shortly so that women employed in public or private industrial or commercial undertakings (including public servants or public employees), fully enjoy the protection provided for by the Convention.

With particular reference to Article 3(d), the Committee can only repeat its previous request in the hope that the Government will be able to adopt the necessary measures in the near future to guarantee that the above-mentioned women workers are entitled to interrupt their work for at least half an hour twice a day to nurse their infants. The Committee requests the Government to provide information in its next report on progress made in this respect.

With regard to Article 4 (prohibition of dismissal of women who are public servants or employees), the Committee notes that the Government transmitted the text of its observation on this point to the National Congress in the hope that this might lead to the adoption of legislative measures in line with the Convention. The Committee trusts that the Government will be able to adopt the necessary measures to include in the national legislation a provision making it unlawful for employers to give notice of dismissal to this category of women workers who are absent on maternity leave or remain absent for a longer period as a result of late confinement or illness arising out of pregnancy or confinement, or to give this notice at such a time that it would expire during such absence.

[The Government is asked to report in detail for the period ending 30 June 1990.]