Observation (CEACR) - adopted 1994, published 81st ILC session (1994)

Maternity Protection Convention (Revised), 1952 (No. 103) - Libya (Ratification: 1975)

1. Article 3, paragraphs 2, 3 and 4, of the Convention (length of maternity leave). In answer to the Committee's previous comments, the Government indicates that section 43 of the Labour Code of 1970, which provides for a total of 50 days' pre- and post-natal maternity leave, is to be considered as having been implicitly repealed following the adoption of section 25 of the 1980 Social Security Act, under which women workers are entitled to maternity benefit for a period of three months. The Committee notes this statement. Since section 25 of the Social Security Act concerns the payment of benefits to women workers in the event of the birth of a child, and not the maternity leave itself which is dealt with in section 43 of the Labour Code, the Committee trusts that the Government will have no difficulties in amending above-mentioned section 43 in order to bring it into conformity with the provisions of the Social Security Act and Article 3 of the Convention, which provides for a minimum of 12 weeks' maternity leave, of which six weeks at least must be taken after confinement. The Committee recalls in this connection that, in its previous report, the Government stated that the tripartite committee established under the decision of the secretary of the Public Service People's Committee recommended to the General People's Committee that, in particular, section 43 of the Labour Code should be amended to bring it into conformity with Article 3 of the Convention. It hopes that, in making the above amendment, the Government will also take the following points into consideration:

(a) The Committee recalls that section 43 of the Labour Code makes the granting of maternity leave conditional upon the completion of a qualifying period of six consecutive months of service with an employer, which is contrary to the Convention. In its last report, the Government indicates that under secion 25 of the Social Security Act, the implementing regulations fix a qualifying period of four months' contributions for entitlement to maternity cash benefits. It adds that such a qualifying period is necessary to avoid abuse and that it is in conformity with Article 4, paragraph 4, of the Convention. While noting this information, the Committee wishes to point out that its comments concerned not the contribution requirements for entitlement to maternity benefit fixed by the Social Security Act, but the six months' qualifying period provided for in section 43 of the Labour Code for the grant of maternity leave. Since the Convention does not allow any such requirement for entitlement to leave, the Committee hopes that it will be removed from the legislation when section 43 of the Labour Code is amended.

(b) The Committee again recalls that section 43 of the Labour Code does not provide, as does Article 3, paragraph 4, of the Convention, that where confinement occurs after the presumed date, prenatal leave must in all cases be extended to the actual date of the confinement, and that the period of compulsory leave to be taken after confinement shall not be reduced on that account. The Committee hopes that it will be possible in the near future to amend section 43 of the Labour Code by including a provision to this effect.

2. Furthermore, the Committee notes that the Government's report contains no information in answer to the comments it has been making for many years on a number of matters. In these circumstances, the Committee is bound to repeat its former comments which read as follows:

Article 1 of the Convention (scope). In its previous comments, the Comittee noted that under section 1 of the Labour Code, the scope of the Code and, consequently, the provisions of the Code restricting maternity protection, do not extend to the following workers, who are nevertheless covered by the Convention: domestic workers and persons in similar categories, women engaged in stock raising and agriculture (except those who work in enterprises processing agricultural products or repairing machinery necessary for agriculture), and permanent or temporary public officials working in state administrations and public bodies. The Committee also noted that some of these categories of women workers will be covered by special regulations. Since the report contains no information on this point, the Committee asks the Government to supply copies of such regulations, if any, and to indicate how these workers enjoy the protection provided for by the Convention under Article 3 (maternity leave), Article 5 (nursing periods) and Article 6 (prohibition of dismissal). Article 2. The Committee notes that under section 5 of the Registration, Contributions and Inspection Regulations of 1982, registration under social security for non-Libyan officials is on a voluntary basis unless there is an agreement concluded with the country of which these workers are nationals. Please indicate the number of non-Libyan female officials and the number of them who are registered under social security, if any. Article 4, paragraphs 1, 4 and 8 (cash benefits). (a) In accordance with the last paragraph of section 25 of the Social Security Act (No. 13) and section 43 of the Labour Code, the maternity benefits provided for women workers, other than self-employed women workers, appear to be the responsibility of the employer. Furthermore, in its report, the Government indicates that the regulations to specify the conditions, rules and guarantees with regard to the provision of maternity benefits, inter alia, which are to be adopted, will include a provision prescribing that the social security fund will pay the benefits to insured women who are entitled to them in cases where the employer is unable to do so, and that the fund reserves the right to claim reimbursement from the employer of the amounts it has paid out, whenever possible. The Committee recalls in this connection that the Convention, in Article 4, paragraphs 4 and 8, provides that maternity benefits shall be provided either by means of compulsory social insurance or by means of public funds, and that in no case shall the employer be individually liable for the cost of such benefits due to women employed by him. The Committee therefore hopes that the Government will be able to re-examine the question in the light of the provisions of the Convention and that it will be able to indicate the measures taken or under consideration no ensure that full effect is given to the Convention on this point. (b) Since section 25 of Social Security Act No. 13 of 1980 does not contain provisions on the subject, the Committee hopes that the regulations issued under the above Social Security Act will expressly provide that in the event of the extension of the length of maternity leave in the circumstances envisaged in Article 3, paragraph 4, of the Convention (error in the presumed date of confinement), the period during which the maternity benefit is provided will be extended for an equivalent period.