Maternity Protection Convention, 2000 (No. 183) - Peru (Ratification: 2016)

Direct Request (CEACR) - adopted 2023, published 112nd ILC session (2024)

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The Committee notes the observations of the Autonomous Workers’ Confederation of Peru (CATP), received on 1 September 2023. The Committee requests the Government to provide its comments in this regard.

Article 3 the Convention. Health protection. Breastfeeding women. The Committee notes the information provided by the Government in its report indicating that, according to section 66 of the Occupational Safety and Health Act, No. 29783 of 2011, the employer must take the necessary measures to prevent the exposure of breastfeeding workers to hazardous work, and that section 100 of Supreme Decree No. 005-2012 indicates that the measures aimed at protecting the safety and health of pregnant workers must be maintained or adapted for breastfeeding workers until at least one year after childbirth. The Committee also notes Act No. 31051 of 2020, which extends protection measures to pregnant and breastfeeding workers during health emergencies. In this regard, the Committee also notes the observations of the CATP, indicating that Act No. 31051 only applies in the event of a health emergency and that labour inspection activities have not focused on protecting the safety and health of pregnant and breastfeeding workers. In this context, the Committee requests the Government to provide information on (i) the ways in which labour inspectors have focused on occupational safety and health risks to pregnant or breastfeeding women; and (ii) whether inspectors have observed situations in which pregnant or breastfeeding women have been obliged to perform work determined by the competent authority to be prejudicial to the health of the mother or the child, or have received any complaints in this respect.

Article 4(4). Minimum period of compulsory leave after childbirth. The Committee notes the information provided by the Government indicating that the period of postnatal leave of 49 calendar days is compulsory. In this context, the Committee requests the Government to confirm whether the compulsory postnatal period of at least six weeks provided for in section 1 of Act No. 26644 is inalienable for women workers.

Article 6(5). Conditions to qualify for cash benefits. The Committee notes the Government’s indication that the maternity allowance is calculated on the basis of the last 12 months’ average remuneration prior to childbirth and that, for workers who have not been registered for 12 months with the social security health system (EsSALUD), the average will be determined according to their length of registration. The Committee notes the CATP’s observations that the majority of women workers are engaged informally, which prevents them from accessing cash benefits through EsSALUD. In this context, the Committee observes that the informal employment rates for women in Peru remain high (see statistical compendium, Peru 2022). The Committee requests the Government to provide information on (i) the number of women workers registered with EsSALUD, as well as the total number of women working informally and formally in Peru, and (ii) the measures envisaged to ensure that the conditions to qualify for cash benefits can be satisfied by a large majority of the women to whom this Convention applies.

Article 6(6). Benefits out of social assistance funds. The Committee notes the Government’s indication that a woman worker who does not qualify for maternity cash benefits through EsSALUD shall be entitled to adequate benefits out of social assistance funds, subject to the means test required for such assistance. In this context, the Committee requests the Government to indicate: (i) the regulatory framework governing the granting of cash benefits to women workers out of social assistance funds; and (ii) the manner in which these benefits ensure that these women can maintain themselves and their children in proper conditions of health and with a suitable standard of living.

Article 6(7). Medical care benefits. The Committee notes that according to section 12 of Supreme Decree No. 009-1997-S, medical care benefits for pregnant workers shall include prenatal care, assistance during childbirth and after childbirth, as well as hospitalization when necessary.

Article 8(1). Employment protection and non-discrimination. In response to its previous comments, the Committee notes the information provided by the Government concerning the judicial decisions handed down in cases of dismissal of pregnant workers or workers on maternity leave.

Article 9(1). Non-discrimination in employment. The Committee notes the legislation in force and the measures taken at the national level with a view to applying the provisions of Article 9 of the Convention, including measures relating to reparations and sanctions considered appropriate in this regard.

Direct Request (CEACR) - adopted 2019, published 109th ILC session (2021)

The Committee notes the Government’s first report.

The Committee notes the observations of the Autonomous Workers’ Confederation of Peru (CATP), communicated with the Government’s report. The Committee also notes the observations of the CATP received on 2 September 2018, and the Government’s reply to these observations.

Article 3 of the Convention. Health protection. Breastfeeding women. The Committee notes the allegation by the CATP that the legal texts referred to by the Government in its report (Act No. 28048 of 2003 on the protection of pregnant women engaged in work that endangers their health and/or the normal development of the embryo and the foetus, and its Regulations; and Act No. 29783 of 2011 on occupational safety and health, and its Regulations; and Ministerial Decision No. 374-2008-TR) refer to pregnant women and cannot therefore apply to breastfeeding women. The Committee notes the Government’s reply, and observes that the laws referred to establish the protection envisaged in this Article of the Convention for pregnant women, and that section 3 of Presidential Decree No. 009-2004-TR provides that this measure may be extended by individual or collective agreement until the end of the breastfeeding period, in view of the risks that can be transmitted to the newborn child through breast milk. The Committee requests the Government to indicate other measures taken or envisaged to ensure that breastfeeding women are not obliged to perform work which has been determined by the competent authority to be prejudicial to the health of the mother or the child, or where an assessment has established a significant risk to the mother’s health or that of her child.

Article 4(4). Minimum period of compulsory leave after childbirth. The Committee notes the information provided by the Government that by Act No. 30367 of 2015, the prenatal and postnatal leave periods were increased from 45 to 49 days (section 1 of Act No. 26644 of 1996, as amended by Act No. 30367 of 2015). The Committee notes that section 1 of Act No. 26644 of 1996, as amended, also provides that all or part of the prenatal leave may be deferred and added to the postnatal leave, at the discretion of the pregnant worker. The Committee requests the Government to indicate how it is ensured that the maternity leave period includes a period of six weeks’ compulsory leave after childbirth.

Article 5. Leave in case of illness or complications. The Committee requests the Government to indicate whether the national legislation provides for leave before or after the maternity leave period in the case of illness, complications or risk of complications arising out of pregnancy or childbirth, and to indicate the nature and the maximum duration of such leave.

Article 6(5). Conditions to qualify for cash benefits. The Committee notes the Government’s indication that the maternity allowance is the amount of cash to which women insured through the social security health system (EsSALUD) are entitled as compensation for loss of earnings resulting from childbirth and the needs to care for the newborn child where, among other conditions, they have paid contributions for three consecutive or four non-consecutive months during the six calendar months prior to the month in which the allowance begins. The Committee requests the Government to indicate how it is ensured that the conditions to qualify for cash benefits can be satisfied by a large majority of the women to whom the Convention applies, including those engaged in non-standard forms of dependent work, and to indicate the number of women to whom the conditions set out in national legislation apply.

Article 6(6). Benefits out of social assistance funds. The Committee notes the allegation by the CATP that maternity benefits are only provided to women insured through the EsSALUD contributory system, which excludes the most vulnerable women workers in the country. The Committee requests the Government to indicate the manner in which it is ensured that, where a woman protected by the Convention does not meet the conditions to qualify for cash benefits, she is entitled to adequate benefits out of social assistance funds, subject to the means test required for such assistance.

Article 6(7). Medical benefits. The Committee requests the Government to indicate whether the medical benefits that should be guaranteed to all women protected under the Convention include prenatal, childbirth and postnatal care, as well as hospitalization care when necessary.

Article 8(1). Employment protection and non-discrimination. The Committee notes the Government’s indication that section 29 of the single consolidated text of Legislative Decree No. 728, the Labour Productivity and Competitiveness Act of 1997, provides that any termination of employment motivated by pregnancy, childbirth and its consequences or nursing shall be null and void if the termination occurs at any time during the pregnancy or the first 90 days after childbirth, where pregnancy is assumed to be the basis for termination if the employer provides no evidence of a just cause for termination. The Committee also notes that section 6 of Act No. 30709 of 2017, which prohibits wage discrimination between men and women, prohibits the employer from terminating or failing to renew the employment contract on grounds related to the fact that women workers are pregnant or nursing. The Committee notes that the CATP reports a possible absence of application in practice of this provision of the Convention and alleges that there are many legal and administrative complaints demonstrating the violation of this right. The Committee requests the Government to provide information on any court rulings setting aside dismissals on grounds of pregnancy, childbirth and its consequences, or nursing.

Article 9(1). Non-discrimination in employment. The Committee notes the Government’s indication that Act No. 26772 of 1997 provides that employment offers and access to educational training facilities shall not impose requirements that constitute discrimination or that undermine or impair equality of opportunity or treatment. The Committee requests the Government to indicate the measures that ensure that maternity does not constitute grounds for discrimination, not only in access to employment, but also in employment, and the measures adopted to give effect to the provisions of this Article of the Convention, including such reparations and sanctions as may be deemed appropriate.