Solicitud directa (CEACR) - Adopción: 2005, Publicación: 95ª reunión CIT (2006)

Convenio sobre la protección de la maternidad (revisado), 1952 (núm. 103) - Mongolia (Ratificación : 1969)

The Committee notes the reports provided by the Government and the attached legislative texts, and would like to draw its attention to the following points.

Article 3, paragraphs 2 and 3, of the Convention. Compulsory leave after confinement. The Committee notes with interest the adoption in 1999 of the new Labour Code establishing maternity leave of 120 days, or around 17 weeks. However, it notes that the Labour Code does not provide that part of the leave must be taken after confinement. In its report, the Government indicates in this respect that the taking of maternity leave is based on a personal decision by the woman worker, without any obligation in this regard. The Committee is nevertheless bound to recall, as it did previously in relation to the former Labour Act, that under the terms of the Convention, part of the maternity leave, which shall not be less than six weeks, has to be taken after confinement. In these conditions, it is bound to regret that the Government did not take the opportunity of the adoption of the new Labour Code to bring the national legislation into conformity with the Convention. In this connection, the Committee recalls that the prohibition on working for a period of six weeks after confinement, as envisaged by the Convention, constitutes a measure of additional protection to the right to maternity leave intended to prevent the worker from resuming her work as a result of pressure or with a view to material advantage before expiry of the legal period of postnatal leave to the detriment of her own health and that of her child. The Committee trusts that, in the light of these considerations, the Government will take the necessary measures in the very near future to supplement the Labour Code with a provision setting out the compulsory nature of a period of postnatal leave, which shall not be less than six weeks, in accordance with Article 3 of the Convention.

Article 4, paragraphs 1, 2, 4 and 6. Cash maternity benefits. The Committee notes that the Law on Social Insurance of 14 May 1994 provides that employed persons in the private and public sectors shall be subject to the compulsory social insurance system, in the context of which a social welfare fund and a health insurance fund have been established. According to the Government’s report, persons contributing to the social insurance system receive maternity benefits for a period of four months, with the amount of the benefits being calculated on the basis of the income of women workers and the allowances to which they are entitled under the social assistance legislation. However, as the Law on Social Insurance covers social insurance benefits in general terms, without specifically dealing with maternity benefits, or their amount, the Committee would be grateful if the Government would provide further information on the legislative texts governing maternity benefits in cash, and particularly establishing their rate. Furthermore, in view of the Government’s indication that the current level of the minimum wage is not enough to provide food and adequate housing for a mother and her child, the Committee would be grateful if the Government would indicate the measures taken to ensure that the maternity benefits provided within the framework of the social insurance system, the amount of which is calculated on the basis of remuneration, are sufficient to ensure the full and healthy maintenance of the mother and her child in accordance with a suitable standard of living, as required by the Convention.

Article 4, paragraph 5. Adequate benefits out of social assistance funds. The Committee notes the Government’s indication that women who are not entitled to social insurance benefits as a matter of right are provided with social assistance maternity allowances equal to the minimum wage in force in the country. The Government indicates in this connection that the amount of the allowance is not enough to provide food and adequate housing for the mother and her child. Noting this information, the Committee would be grateful if the Government would indicate the conditions required, such as a minimum level of contributions, in addition to registration with the social insurance system, as prescribed by section 6(1) of the Law on Social Insurance, for entitlement to social insurance cash benefits. The Committee also recalls the requirement set out in the Convention that women who fail to qualify for cash benefits provided as a matter of right shall be entitled to adequate benefits out of social assistance funds and it trusts that the Government will take the necessary measures to ensure the provision of adequate maternity allowances within the framework of social assistance.

Article 4, paragraph 3. Medical benefits. The Committee notes the Government’s indication in its report that the mothers of children under two years of age and children under 16 years of age benefit from free health insurance. It also notes the Government’s indication that it attached to its report a copy of the Health Insurance Law. As this text does not appear to have reached the Office, the Committee would be grateful if the Government would provide a copy with its next report, together with information on the nature of the prenatal care, care during confinement and postnatal care included in the medical benefits to which women workers covered by the Convention are entitled.

Article 6. The Committee notes that section 100 of the Labour Code establishes the principle of the prohibition of terminating the employment of a pregnant woman or a woman with a child under 3 years of age. However, it notes that this provision authorizes termination of employment in certain limited cases of serious fault which it enumerates, whereas the Convention provides for an absolute prohibition for the employer to give a woman notice of dismissal during the period of maternity leave, or at such time that the notice would expire during such absence. While agreeing with the Government that the protection afforded by the Labour Code covers a longer period than that envisaged in the Convention, the Committee recalls that the purpose of this provision of the Convention is to provide greater protection during the absence of the woman worker, thereby protecting her from any discrimination on grounds of maternity. It does not however, for example, oblige an employer terminating her or his activity or detecting a serious fault on the part of a woman employee to maintain the employment contract of a woman worker, despite reasons justifying dismissal, but merely to extend the legal period of notice by means of a supplementary period equal to the time required to complete the absence on maternity leave. The Committee hopes that, in view of the above, the Government will be in a position to re-examine the relevant provisions of the Labour Code so as to prohibit termination of employment during the period protected by the Convention.