Maternity Protection Convention (Revised), 1952 (No. 103) - Bahamas (RATIFICATION: 2001)

CMNT_TITLE

The Committee notes the report received in November 2014 containing a reply to its previous comments and asks the Government to provide additional information on the following points:

Article 3(1) of the Convention. Entitlement to maternity leave. Section 17(3) of the Employment Act of 2000 provides that in order to qualify for a grant of maternity leave, a female employee: (a) must have been employed for at least 12 months by the employer from whom she requests such leave; and (b) is not entitled to maternity pay with the same employer more than once in every three years. As the Convention does not allow any such limitations, the Committee requests the Government to bring section 17(3) of the Employment Act into conformity with the Convention by removing the two abovementioned conditions.

Article 3(3). Compulsory postnatal leave. The Committee notes that the period of maternity leave established by section 18(1) of the Employment Act can be modified where the employee so desires. It requests the Government to ensure that, in accordance with this provision of the Convention, a part of the maternity leave of no less than six weeks, which is compulsory, shall be taken after childbirth in all circumstances.

Article 4(1) and (3). Medical benefits. Please specify whether the health services guaranteed under Act No. 3 of 2007 on the national health insurance scheme include hospitalization and provide a copy of any regulations adopted to apply paragraph 1(d) of section 15 of the said Act, concerning the cost-sharing by insured persons in the cost of medical care.

Article 5. Interruptions of work for nursing. Recalling that, in accordance with this provision of the Convention, the nursing breaks have to be prescribed by national laws or regulations or by collective agreements, the Committee requests the Government to complete the Employment Act with a provision prescribing the conditions of interruptions of work for the purpose of nursing (duration, remuneration, frequency, etc.) which are counted as working hours and remunerated accordingly.

Article 6. Protection against dismissal during maternity leave. The Committee notes that section 21(1)(b) of the Employment Act provides for protection against dismissal in case of maternity, including during the period of leave. However, while this protection covers a longer period than envisaged by the Convention, it is not applicable under section 21(2)(a) where the woman has committed serious default or gross negligence amounting to abandonment of duty. The Committee recalls in this respect that the Convention does not authorize the dismissal of a woman worker on any grounds during maternity leave, even in certain special or exceptional circumstances considered by law to constitute a legitimate ground for dismissal. Accordingly, the Committee hopes that the Government will be able to re-examine the situation and take the necessary measures to ensure that the protection set out in subsection 1(b) of section 21 is not affected by subsection 2(a).

CMNT_TITLE

The Committee notes that the Government’s report does not reply to its previous comments. It hopes that the requested information will be supplied for examination by the Committee at its next session and reiterates its previous comments, which read as follows:

Repetition

The Committee had previously drawn the attention of the Government to the need to bring national legislation into conformity with Article 3(1) and (3) (entitlement to maternity leave, compulsory leave after confinement of six weeks), Article 5 (interruptions of work for nursing) and Article 6 (protection against dismissal during maternity leave) of the Convention. In its report the Government has undertaken to advise workers’ and employers’ associations in a tripartite forum of the national provisions that need to be amended to ensure the full application of the Convention, particularly the provisions relating to the duration of maternity leave. The Committee requests the Government to indicate any progress made in this respect.

Article 3(5) (in relation to Article 4(1) and (6). Supplementary leave in the event of illness arising out of pregnancy. Under these provisions of the Convention, a woman worker is entitled, in the event of an illness arising out of pregnancy, to additional leave with cash benefits. Where cash benefits are provided under a compulsory insurance system and are determined on the basis of previous earnings, they shall be at a rate of not less than two-thirds of the woman’s previous earnings taken into account for the purposes of computing benefits. The Government is requested to indicate how these provisions of the Convention are applied both in law and in practice.

Article 3(6) (in relation to Article 4(1)). Extension of leave in the event of illness arising out of confinement. Referring to its observation, the Committee notes that section 36 of the National Insurance (Benefits and Assistance) Regulations, as amended in 2003, now provides for the payment of maternity benefits for an additional six weeks in the event of an illness arising from confinement. In the circumstances, the Committee would like to suggest to the Government that section 19 of the Employment Act maybe amended by deleting the words “not paid” to bring the section in line with section 36 of the abovementioned Regulations.

Article 4(1),(4), (7) and (8). Maternity cash benefits. The Committee hopes that the Government will not fail to provide, as it undertakes to do in its report, explanations regarding the coexistence in law and in practice of maternity benefits paid under the national insurance scheme and the maternity leave paid for by the employer.

Article 4(1) and (3). Medical benefits. The Government points out that under paragraph 1(g) of section 20 of the National Insurance Act, women workers on maternity leave are entitled to medical benefits, subject to the doctor providing medical documents to the National Insurance Fund. In this respect, the Committee notes with interest the adoption of Act No. 3 of 2006 on the national health insurance scheme which provides in section 8 (to be read in conjunction with section 2(2)), among other things, the granting of obstetrical health services to insured persons. The Committee requests the Government to specify whether the health services guaranteed under this Act include hospitalization. Please also provide information on any regulations adopted to apply paragraph 1(d) of section 15 of the abovementioned Act and to communicate a copy thereof.

Article 4(5). Social assistance benefits. The Committee notes from the Government’s report that, under the present national legislation, there are no provisions for the payment of social assistance benefits by the Department of Social Services to women who have never worked before their pregnancy. On this subject, the Committee recalls that the aim of this provision of the Convention is to provide for the payment of appropriate benefits out of social assistance funds to women employees who do not qualify for maternity cash benefits as a matter of right. Consequently, the Committee requests the Government to consider the possibility of introducing in its legislation provisions under which social assistance benefits might be paid to women workers who fail to qualify for maternity benefits because they do not fulfil the conditions of length of employment provided for under section 35 of the National Insurance (Benefits and Assistance) Regulations.

CMNT_TITLE

The Committee had previously drawn the attention of the Government to the need to bring national legislation into conformity with Article 3, paragraphs 1 and 3 (entitlement to maternity leave, compulsory leave after confinement of six weeks), Article 5 (interruptions of work for nursing) and Article 6 (protection against dismissal during maternity leave) of the Convention. In its report the Government has undertaken to advise workers’ and employers’ associations in a tripartite forum of the national provisions that need to be amended to ensure the full application of the Convention, particularly the provisions relating to the duration of maternity leave. The Committee requests the Government to indicate any progress made in this respect.

Article 3, paragraph 5 (in relation to Article 4, paragraphs 1 and 6). Supplementary leave in the event of illness arising out of pregnancy. Under these provisions of the Convention, a woman worker is entitled, in the event of an illness arising out of pregnancy, to additional leave with cash benefits. Where cash benefits are provided under a compulsory insurance system and are determined on the basis of previous earnings, they shall be at a rate of not less than two-thirds of the woman’s previous earnings taken into account for the purposes of computing benefits. The Government is requested to indicate how these provisions of the Convention are applied both in law and in practice.

Article 3, paragraph 6 (in relation to Article 4, paragraph 1). Extension of leave in the event of illness arising out of confinement. Referring to its observation, the Committee notes that section 36 of the National Insurance (Benefits and Assistance) Regulations, as amended in 2003, now provides for the payment of maternity benefits for an additional six weeks in the event of an illness arising from confinement. In the circumstances, the Committee would like to suggest to the Government that section 19 of the Employment Act maybe amended by deleting the words “not paid” to bring the section in line with section 36 of the abovementioned Regulations.

Article 4, paragraphs 1, 4, 7 and 8. Maternity cash benefits. The Committee hopes that the Government will not fail to provide, as it undertakes to do in its report, explanations regarding the coexistence in law and in practice of maternity benefits paid under the national insurance scheme and the maternity leave paid for by the employer.

Article 4, paragraphs 1 and 3. Medical benefits. The Government points out that under paragraph 1(g) of section 20 of the National Insurance Act, women workers on maternity leave are entitled to medical benefits, subject to the doctor providing medical documents to the National Insurance Fund. In this respect, the Committee notes with interest the adoption of Act No. 3 of 2006 on the national health insurance scheme which provides in section 8 (to be read in conjunction with section 2, paragraph 2), among other things, the granting of obstetrical health services to insured persons. The Committee requests the Government to specify whether the health services guaranteed under this Act include hospitalization. Please also provide information on any regulations adopted to apply paragraph 1(d) of section 15 of the abovementioned Act and to communicate a copy thereof.

Article 4, paragraph 5. Social assistance benefits. The Committee notes from the Government’s report that, under the present national legislation, there are no provisions for the payment of social assistance benefits by the Department of Social Services to women who have never worked before their pregnancy. On this subject, the Committee recalls that the aim of this provision of the Convention is to provide for the payment of appropriate benefits out of social assistance funds to women employees who do not qualify for maternity cash benefits as a matter of right. Consequently, the Committee requests the Government to consider the possibility of introducing in its legislation provisions under which social assistance benefits might be paid to women workers who fail to qualify for maternity benefits because they do not fulfil the conditions of length of employment provided for under section 35 of the National Insurance (Benefits and Assistance) Regulations.

CMNT_TITLE

Referring to its previous comment, the Committee notes with satisfaction the amendments made in 2003 to the National Insurance (Benefits and Assistance) Regulations which give full effect to the following provisions of the Convention.

Article 3, paragraph 6 (in relation to Article 4, paragraph 1), of the Convention. Extension of paid leave in the event of illness arising from confinement. Section 36 of the National Insurance (Benefits and Assistance) Regulations, as amended, now provides for the payment of maternity benefits for an additional six weeks in the event of illness arising from confinement.

Article 4, paragraphs 1 and 6. Maternity cash benefits. The rate of maternity cash benefits provided for under section 37, paragraph 1, of the National Insurance (Benefits and Assistance) Regulations, as amended, has been increased from 60 per cent to 66.66 per cent of the average weekly insurable wage, thereby guaranteeing the payment of maternity cash benefits that are equivalent to two-thirds of the woman’s previous earnings, in accordance with these provisions of the Convention.

The Committee is raising other points in a direct request submitted to the Government.

CMNT_TITLE

The Committee notes the information contained in the Government’s first report. It wishes to draw its attention to or receive additional information on the following points.

1. Article 3, paragraph 1, of the Convention. Section 17(3)(a) of the Employment Act of 2000 provides that in order to qualify for a grant of maternity leave, a female employee must have been employed for at least 12 months by the employer from whom she requests such leave. In view of the fact that the Convention does not allow any condition relating to a minimum period of employment for entitlement to maternity leave, the Committee requests the Government to indicate the measures taken or envisaged to bring section 17(3)(a) of the Employment Act into conformity with the Convention on this point.

2. Article 3, paragraph 3. The Committee notes that the period of maternity leave established by section 18 of the Employment Act can be modified where the employee so desires. It therefore requests the Government to indicate the measures adopted or envisaged to ensure that, in accordance with this provision of the Convention, a part of the maternity leave of no less than six weeks shall be taken after confinement.

3. Article 3, paragraphs 5 and 6 (in relation with Article 4, paragraph 1). Please indicate the provisions of laws or regulations giving effect to this Article of the Convention respecting the granting of appropriate leave in case of illness arising out of pregnancy or confinement and the corresponding cash benefits (with regard to the nature of such benefits, see also under point 4 below).

4. Article 4, paragraphs 1, 3, 4, 6, 7 and 8. The Committee requests the Government to provide detailed information on the provisions of the National Insurance Act and its implementing regulations providing for maternity benefit in cash, and particularly on their implementation in practice. The Committee recalls in this respect that, according to these provisions of the Convention, maternity benefits have to be provided either by means of compulsory social insurance or public funds. Furthermore, where cash benefits are provided, as appears to be the case in the Bahamas, under a compulsory social insurance system, and are determined on the basis of previous earnings, they shall be at a rate of not less than two-thirds of the woman’s previous earnings taken into account for the purpose of computing benefits.

Moreover, the Committee would be grateful if the Government would provide explanations regarding the coexistence of maternity benefit paid in the context of the national insurance system (see, in this respect, section 20(1)(c) of the National Insurance Act of 1972, as amended and sections 34 and 11 of the National Insurance (Benefits and Assistance) Regulations of 1974, as amended and the maternity leave paid for by the employer (section 17 of the Employment Act)). Indeed, section 38 of the Regulations only addresses the relation between maternity benefit provided by the insurance and maternity leave paid by the employer under an agreement, but not the statutory maternity benefit provided for by section 17 above.

5. Article 4, paragraphs 1 and 3. Please indicate whether, and if so under which provisions, medical benefits are provided in the event of maternity in accordance with these provisions of the Convention.

6. Article 4, paragraph 5. Please indicate whether benefits paid out of social assistance are provided to women who fail to qualify for maternity benefits because they do not fulfil the qualifying conditions set out in section 35 of the National Insurance (Benefits and Assistance) Regulations.

7. Article 5. The Committee notes from the information contained in the Government’s report that, despite the fact that the Employment Act is silent on the question of nursing periods, women workers are afforded rest periods which can be and are used for this purpose, which has prevented any disputes. The Committee recalls in this respect that the nursing pauses envisaged by this provision of the Convention have to be prescribed by national laws or regulations or, in accordance with the law, by collective agreement, and that such pauses must be distinct from normal breaks. The Committee therefore hopes that it will be possible to supplement the Employment Act so as to provide explicitly for interruptions of work for the purpose of nursing which are counted as working hours and remunerated accordingly.

8. Article 6. The Committee notes that section 21(1) of the Employment Act provides for protection against dismissal in case of maternity, including during the period of leave. However, it notes that this protection, which covers a longer period than that envisaged by the Convention, is not applicable where the woman has committed serious default or gross negligence amounting to abandonment of duty. The Committee recalls in this respect that the Convention does not authorize the dismissal of a woman worker during maternity leave in certain special or exceptional circumstances considered by law to constitute a legitimate ground for dismissal. It therefore hopes that the Government will be able to re-examine the situation and take the necessary measures to ensure that the protection set out in subsection 1(b) of section 21 is not affected by subsection 2(a).

9. The Committee requests the Government to provide information on any order or regulation adopted under section 3(2) of the Employment Act and under section 12(2) of the National Insurance Act. Please also provide a copy, where appropriate.

10. The Committee notes that, under section 18 of the Employment Act, the minimum duration of maternity leave is 12 weeks. In this respect, the Committee ventures to suggest that the Government might examine the possibility of extending this period to 13 weeks in order to align it with the period of maternity benefit envisaged under section 36 of the National Insurance (Benefits and Assistance) Regulations.