Observation (CEACR) - adopted 1998, published 87th ILC session (1999)

Maternity Protection Convention (Revised), 1952 (No. 103) - Sri Lanka (Ratification: 1993)

1. In its previous comments, the Committee had drawn the Government's attention to the application of the Convention with regard to female plantation workers and in particular the system of alternative maternity benefits which were the subject of comments made by the Lanka Jathika Estate Workers Union (LJEWU). In its last report, the Government states that female plantation workers receive benefits guaranteed under Ordinance No. 32 of 1939 respecting maternity benefits. The Committee notes that section 5(3) of this Ordinance enables certain employers to provide alternative benefits to women workers employed on their estate, upon receipt of a written certificate from the Commissioner confirming that structures offering such benefits are in place. These benefits are provided to female workers who are resident on these estates as well as to non-resident employees who have expressed their wish to receive such benefits. Women employed on these estates who refuse alternative benefits are denied the right to maternity benefits granted to other female workers under Ordinance No. 32 (section 5(4) of this Ordinance). In this regard, the Committee recalls that, according to the observations communicated by the LJEWU, female plantation workers who receive alternative benefits are victims of discrimination since, on the one hand, the medical benefits provided by the medical centres in these plantations are of a lesser quality and, on the other hand, their cash benefits are less than those received by other female workers. Moreover, the trade union's opinion is that the system of alternative benefits is now out of date and obsolete in the respect that the improvements and the progress made in the national health system enables quality medical care to be provided in the specialized services of national hospitals and private medica centres which are accessible to female workers in rural zones. Finally, the Committee notes the information provided by the Government in its last report to the effect that cash benefits paid to female workers within the framework of the alternative benefit system is equivalent to 4/7 of the 6/7 of their former salary which is less than 49 per cent of their previous earnings.

In this respect, the Committee draws the Government's attention to the fact that the granting of alternative benefits shall in no way deprive the female worker of her right to sufficient cash benefits for the full and healthy maintenance of herself and her child in accordance with a suitable standard of living, in conformity with Article 4, paragraph 2, of the Convention. Moreover, the Committee recalls that under Article 4, paragraph 6, where cash benefits are based on previous earnings, they should be at a rate of not less than two-thirds of these previous earnings. The Committee also recalls that, under Article 4, paragraph 3, medical benefits shall include pre-natal, confinement and post-natal care by qualified midwives or medical practitioners as well as hospitalization care where necessary. Consequently the Committee would be grateful if the Government would indicate the measures taken or envisaged to amend the relevant provisions of the Ordinance respecting maternity benefits to ensure that all female workers covered by the Convention receive cash benefits as well as medical care at the level and for the duration provided for in the Convention.

2. Article 3, paragraphs 2 and 3. The Government indicates in its report that the period of maternity leave is 12 weeks. Nevertheless, it adds that such leave is only granted for the first two confinements. In the case of a third confinement (as well as in the event of a still birth) the female worker is entitled to only six weeks' maternity leave. The Committee recalls that under Article 3, paragraphs 2 and 3, of the Convention, the period of maternity leave shall be at least 12 weeks, of which six weeks must be taken following confinement irrespective of the number of confinements. The Committee hopes that the Government will indicate in its next report the measures taken or envisaged to ensure the full application of these provisions of the Convention to all female workers who are covered by this instrument.

3. The Committee notes that the maternity benefits Ordinance is not extended to female employees who work in shops or offices (section 21 of the Ordinance). Consequently, the Committee would be grateful if the Government would provide a copy of the text of Act No. 19 of 1954 respecting shop and office employees, in its amended version. The Committee emphasizes the need to submit a current version of this legislation, since the Government states that female workers are entitled to 12 weeks' maternity leave whereas, the version of the Act of 1954 made available to the Office provides that these employees are only entitled to 42 days of maternity leave (14 days prior to and 28 days following confinement).

The Committee would also be grateful if the Government would provide a copy of the legislation which is applied to female employees in the public sector (Chapter XII, section 18 of the Establishment Code).

With regard to Ordinance No. 32 of 1939 respecting maternity benefits, the text available to the Office includes amendments adopted up to and including 1985. The Committee again requests the Government to provide a copy of the text of this Ordinance in the current version as well as any Regulation and, in particular, the Regulation referred to under section 5(1) of Ordinance No. 32 which lays down the rate of cash benefits to be paid.

The Committee reserves the right to examine in greater detail the legislative texts in force as soon as they are made available to the Committee.

4. Moreover the Committee again requests the Government to provide a copy of the observations made by the Employers' Federation of Ceylon and the Ceylon Workers' Congress referred to in its first report.

[The Government is asked to report in detail in 1999.]