Chapter I. Purposes, definitions and scope

The dual purpose of the instruments

22. The Workers with Family Responsibilities Convention, 1981 (No. 156), and Recommendation (No. 165), were intended from their inception to promote equality of opportunity and treatment in employment for men and women workers with family responsibilities as well as between workers with family responsibilities and those without such responsibilities. In broad terms, the instruments seek to encourage member States to take all appropriate measures to realize these goals in the context of their various national capacities and circumstances, rather than to prescribe a precise combination of measures. It is evident from the preparatory work leading to the adoption of these standards that there was an intention to allow ratifying States the broadest possible flexibility in meeting these objectives.

23. The full title of both instruments is: "Equal Opportunities and Equal Treatment for Men and Women Workers: Workers with Family Responsibilities". During the preparation of the 1981 instruments, a number of member States questioned the dual nature of this title, expressing concern that it was ambiguous and did not clearly state the intention of the instruments. (Endnote 1) It was considered that the title could give rise to a variety of interpretations: some provisions of the instruments dealt with the question of equality between male and female workers with family responsibilities, while others dealt with the question of equality between workers with and without such responsibilities. (Endnote 2) It was also pointed out that the adoption of a series of international labour standards on different aspects of the issue of equality of opportunity and treatment might create confusion and reduce the chances for ratification. (Endnote 3)

24. Underlying this concern with the wording of the title of the instruments was a difference of views among member States over their objectives. Some governments (Endnote 4) considered that equality of opportunity and treatment of men and women workers ought to be the major thrust of the instruments, while others, (Endnote 5) considered their goal was to assist workers with family responsibilities rather than to act as instruments to promote equality between the sexes.

25. In the final adoption of the instruments by the 67th Session of the International Labour Conference it was agreed that the Convention and Recommendation had in fact the dual objective of creating equality of opportunity and treatment in working life between men and women with family responsibilities, on the one hand, and between men and women with such responsibilities and workers without such responsibilities, on the other. It was considered that full equality of opportunity and treatment for men and women could not be achieved without broader social changes, including a more equitable sharing of family responsibilities, and that the excessive burden of family and household tasks still borne by women workers constituted one of the most important reasons for their continuing inequality in employment and occupation. Therefore, it was agreed to insert an additional paragraph in the text of the Preamble of the Convention and Recommendation, as follows: "Recognizing the need to create effective equality of opportunity and treatment as between men and women workers with family responsibilities and between such workers and other workers, ...".

26. The Preamble to the Convention and Recommendation also emphasizes the concern, as formulated in the 14th paragraph of the Preamble of the United Nations Convention on the Elimination of Discrimination against Women, 1979, that States Parties are "aware that a change in the traditional role of men as well as the role of women in society and in the family is needed to achieve full equality between men and women, ...". The aim of the instruments was therefore, in the view of the member States, not to pursue a general "family policy" (Endnote 6) but rather to deal with the issue of family responsibilities in so far as the burden of such responsibilities borne by workers could create or maintain existing inequalities between the sexes. In this regard, it was recalled that discrimination on the grounds of family responsibilities or marital status was frequently judged to be a form of discrimination based on sex. (Endnote 7)

27. The Preamble to the Convention and Recommendation also recalls that many of the problems facing all workers are aggravated in the case of workers with family responsibilities, and recognizes the need to improve the conditions of the latter both by measures responding to their special needs and by measures designed to improve the conditions of workers in general. This reflects another major concern during the preparatory work that measures taken on behalf of workers with family responsibilities should not entail discriminatory consequences for other members of the workforce. (Endnote 8) It was considered that a purposefully broad definition of workers with family responsibilities would help to avoid this pitfall, in so far as the instrument could in fact cover all workers, as any worker might, at some point, find herself or himself having to assume family responsibilities. (Endnote 9) In the preliminary discussions, emphasis was placed on measures that would be of special benefit for workers with family responsibilities -- such as reductions in working hours -- which would also be of general benefit to all workers, although no example of such measures was retained in the final text.

28. Article 1, paragraphs 1 and 2, of the Convention include an identical clause limiting coverage of the instruments to men and women workers with family responsibilities: "where such responsibilities restrict their possibilities of preparing for, entering, participating in or advancing in economic activity". This reflects a desire not only to limit the focus of the instrument with regard to the profile of the workers concerned but also to introduce another precautionary measure designed to prevent making workers with family responsibilities a privileged group in relation to other workers, thereby giving rise to discrimination against workers without family responsibilities.

29. This point also has a bearing on the Convention's application to both men and women workers. Where inequalities exist between men and women workers regarding their family responsibilities -- a phenomenon that appears to persist almost everywhere in the world -- and where that situation results in restricting the economic activity of women workers only, it would be legitimate to aim measures at women, provided that men are not formally barred from access to such measures should they find themselves in the same circumstances.

30. Article 3 states that member States shall make it an aim of national policy to enable persons with family responsibilities who are engaged or wish to engage in employment to exercise their right to do so without being subject to discrimination. In addition to discrimination in employment and in preparation for employment, the Convention also addresses the issue of discrimination on the ground of family responsibilities in termination of employment (Article 8). The Recommendation suggests more broadly that marital status, family situation or family responsibilities should not, as such, constitute valid reasons for refusal or termination of employment (Paragraph 16). These provisions provoked extensive debate during the preliminary discussions. Some members of the Conference Committee considered that the question of termination was linked more to discrimination on the ground of sex, than to discrimination on the basis of family responsibilities. Since family responsibilities devolved largely upon women, they were more vulnerable than men to dismissal upon marriage or when children arrived. Discrimination therefore arose not principally because of family responsibilities but for reasons of sex. Accordingly, it was proposed that the prohibition against termination on the basis of family responsibilities should be qualified by the words "if this constitutes direct or indirect discrimination on grounds of sex". Other members maintained, however, that such a qualification would have the effect of allowing undertakings to dismiss workers because of their marital status, family situation or family responsibilities so long as they did not discriminate between men and women. (Endnote 10)

31. Consideration was also given to including in the Convention a provision forbidding the refusal of employment to a worker because of his or her family responsibilities. In the event, it was decided that such a provision would be difficult to implement in many countries without the extensive revision of existing legislation. Consequently, the Convention deals only with termination of employment and the question of refusal of employment was included in Paragraph 16 of the Recommendation.

Definitions

Family responsibilities, family situation and marital status

32. During the preparatory work on the 1981 standards, it was noted that "family responsibilities", "family situation" and "marital status" were not explicitly included among the grounds on which discrimination was forbidden under the Discrimination (Employment and Occupation) Convention, 1958 (No. 111), under Article 1, paragraph 1(a). It was proposed that "family situation" and "marital status" should be included alongside "family responsibilities" as grounds for discrimination forbidden under Convention No. 156, in particular in order to cover the variety of family situations in different countries and to recall the wording of previous international instruments on the subject. (Endnote 11)

33. While this wording was not retained in the final text of the Convention, a number of member States have included "family situation" and "marital status" alongside "family responsibilities" in the forms of discrimination forbidden under their national legislation or practices. Nearly all national legislation under review forbids discrimination based on sex. In many countries, "marital status" (sometimes more specifically a change in marital status) is also a proscribed ground of discrimination (for example, Australia, Canada (in the federal jurisdiction and in the provinces and territories apart from Quebec), Ireland, Israel, New Zealand, the Philippines, Togo and the United Kingdom). A number of countries, particularly those with Latin cultural and legal traditions, use the term "civil status" or "civil situation" ("état civil" or "estado civil"), which in most cases can be considered as equivalent to marital status (as in Brazil, Canada (Province of Quebec), Ecuador, France and Spain). Discrimination based on pregnancy or maternity-related conditions is also specifically mentioned in several countries (Belarus, Bermuda, Colombia, Portugal and the United States). Some governments have stated that legislation prohibiting discrimination on the basis of sex or marital status also covers discrimination on the basis of family responsibilities. However, in many cases this intention appears not to have been tested by the relevant courts or tribunals in the country. In some countries, it would seem that where indirect discrimination on these grounds is proscribed expressly, the legislators have sought to enable a worker -- and more particularly a woman -- to seek redress for discriminatory consequences arising out of her actual or presumed assumption of family responsibilities. Since the information available does not provide any examples of such cases, the Committee is unable to ascertain the effectiveness of these provisions for the application of the Convention. This variety of definitions of discrimination would seem to confirm the broad scope for application of the Convention in keeping with differing national cultures and conditions.

34. The application of the Convention in respect of the goal of equality for men and women workers is tempered by the definition of discrimination given in Article 3, paragraph 2, of the Convention, which refers to the definition established in Articles 1 (Endnote 12) and 5 of the Discrimination (Employment and Occupation) Convention, 1958 (No. 111), and is of particular relevance to the question of positive measures taken to promote the equality of women workers. In particular, Convention No. 111, Article 5(1) states: "Special measures of protection or assistance provided for in other Conventions or Recommendations adopted by the International Labour Conference shall not be deemed to be discrimination," and Article 5(2) continues: "Any Member may ... determine that other special measures designed to meet the particular requirements of persons who, for reasons such as sex, age, disablement, family responsibilities or social or cultural status, are generally recognized to require special protection or assistance, shall not be deemed to be discrimination".

35. This qualification of the definition of discrimination is of crucial importance to the application of the instruments examined here, particularly as the Convention's accompanying Recommendation No. 165 supersedes the previous Employment (Women with Family Responsibilities) Recommendation, 1965 (No. 123) (see the Introduction, for the background to this decision). Whether or not it would be possible to retain programmes aimed specifically at women workers with family responsibilities was one of the key concerns of member States in the deliberations leading up to the adoption of the instruments. Many member States, particularly those in the process of development, (Endnote 13) felt that they could continue to implement programmes aimed at women workers but would not yet be able to initiate more ambitious measures covering both women and men, while other member States argued that the basic premise of Recommendation No. 123 -- that women still bear the main responsibility for the family -- was now outmoded and that it would not be advisable for there to be two international instruments on a similar theme but based on such different premises. (Endnote 14) In fact this was specifically stated in Part II, Paragraph 8(2) of the Recommendation: "During a transitional period special measures aimed at achieving effective equality between men and women workers should not be regarded as discriminatory". (Endnote 15) Examples of such measures are covered below in the discussion of the details of national programmes. None the less, whether or not any special measures aimed primarily at women workers continue to be applied for the time being, the aim of national policies under the Convention is clearly to promote full coverage of both men and women workers in all programmes concerning workers with family responsibilities. (Endnote 16)

Children

36. Article 1, paragraph 3, states that for the purposes of the Convention, the terms "dependent child" and "other member of the immediate family who clearly needs care or support" mean persons defined as such in each country by one of the means referred to in Article 9 of this Convention, that is "by laws or regulations, collective agreements, works rules, arbitration awards, court decisions or a combination of these methods, or in any other manner consistent with national practice which may be appropriate, account being taken of national conditions". In keeping with the concern to promote the development of a variety of measures to give effect to the Convention among member States and to provide sufficient flexibility to account for different national circumstances, it was agreed during the discussions leading up to the adoption of the final instrument, that the wide variation in the definition of family and the nature of the individual's duties towards it in different societies (Endnote 17) required that this definition be left as broad as possible in the text of the Convention, so that individual governments could determine its content.

37. Article 1, paragraph 1, states that the Convention applies to men and women workers with responsibilities in relation to their dependent children. This provision of the Convention may not be applied in stages, as is allowed for other provisions, under Article 10. The coverage of workers "with responsibilities in relation to other members of their immediate family who clearly need their care or support ...", provided for in Article 1, paragraph 2, may, however, be extended more gradually. Again, this decision was based on extensive debate in the course of the deliberations on the instruments. The idea that the broadest possible definition of family responsibilities should be provided in order to respond to the variety of conditions in member States (see above) met with resistance from a number of governments, who considered that too sweeping a definition would be inappropriate and would hinder ratification of the Convention, (Endnote 18) while other governments proposed an even broader definition than the one originally proposed, to include family members not actually living in the same household or other persons requiring care not related to the worker. (Endnote 19)

38. It was unanimously agreed, however, that it was reasonable to require the definition of family responsibilities to include those responsibilities with respect to dependent children. It was for this reason that coverage of dependent children was made mandatory in the final text of the Convention, with no provision for application by stages. Within the broad definition of dependent children, there is none the less considerable scope for specific national regulations regarding the child's age, legal relationship to the worker, residence, and other characteristics, bearing in mind that the concept of "dependence" should signify reliance on the worker for support and sustenance, and physical and mental well-being. (Endnote 20) It was determined that dependence was not to be restricted to economic dependence only, in order to take into account needs of a different nature, such as those of the handicapped or disabled.

39. In keeping with this concept of dependence, most member States have used their standard age limit for minors or children for the purposes of the definition of dependent children under the Convention. These definitions, established in national legislation on families, social security, education and related matters, generally cover children from birth up to an age ranging from 15 years (for example, Cyprus and Mauritius) to 21 years (for example, Ecuador and Indonesia), with most set at 18 years (for example, Belarus, New Zealand, Syrian Arab Republic and Venezuela) or 19 years (for example, Canada, federal standards), or at the age at which obligatory instruction ends (for example, United Kingdom (Saint Helena) and Switzerland). This coverage is frequently lengthened in the case of children who remain in full-time education, apprenticeship or other vocational training, or who carry out military service, until ages ranging from 19 (for example, the United Kingdom) to 25 (for example, for male children in Cyprus; for females, this provision lasts only until the age of 23, apparently because of the additional obligatory two-year military service for men). The extension of the definition of dependence in such cases would appear to be reasonable in so far as children are unable to support themselves as long as they are engaged in full-time studies, apprenticeship or other training. In keeping with this reasoning, Belarus specifically exempts students receiving grants from dependent status, presumably because they are no longer considered to be economically dependent. Some countries (for example, Ecuador and Syrian Arab Republic) extend the definition of dependence to include all unmarried, divorced or widowed daughters, if they are unable to support themselves. Finally, most member States extend the age limit for dependent children in the case of severe illness or disability. Indeed, in such cases there may be no upper age limit on the child's dependence (for example, Burundi, Cuba, Cyprus, Ecuador, Mauritius).

40. On the question of the legal relationship of the dependent child to the worker, there is considerable variation in coverage in the different member States. All countries which have provided information on this matter cover children born to a husband and wife, while most also cover adopted children or those born to one of the partners in a previous marriage (for example, Bangladesh and Portugal). Children of other family members, including grandchildren, may also be covered if the natural parents are deceased or unable to care for them (for example, Bolivia, China and Mexico). A large number of countries further include provisions for children born out of wedlock but formally recognized according to an accepted national practice (for example, France, Rwanda, Switzerland, United Kingdom (Montserrat)) or without specification of such legal recognition (for example, Burundi, United Kingdom (Hong Kong)). A smaller number of countries cover children who do not fit either of these categories but who are legally resident with the worker (Poland, Tunisia). Indeed, these may even include children who are not related to the workers but are being brought up by them (Canada (Province of Ontario), the Netherlands).

41. As can be seen from the above, the definition of the degree of dependence of the child no the worker is frequently linked to the legal residence of the child. This is a problem not only when the child is not related to the worker, but also when the parents are divorced or not living together. National regulations on such cases vary considerably, as the degree of legal responsibility for the upbringing of a child under such conditions depends to a great extent on national traditions and legal systems. In many countries, the parent who does not reside with the child has normally only a financial obligation to contribute to the child's support, unless the other parent becomes incapacitated. While the child may still be considered a dependant for some purposes (in particular with regard to social security and taxation), it is unlikely in these circumstances that the responsibility involved will restrict the worker's participation in economic activity or give rise to discrimination, an essential qualifying condition under the Convention. In some other countries, however, the responsibility for children not residing in the same household is more extensive, so that these children may still be considered as dependants in the spirit of the Convention. (Endnote 21)

Other members of the immediate family

42. Article 1, paragraph 2, provides that the provisions of the Convention shall also be applied to men and women workers with responsibilities in relation to other members of their immediate family who clearly need their care or support. The question of the coverage of other family members was one of the most controversial in the deliberations of the Committee in drafting the Convention. That other members of the family besides dependent children should be covered at all was by no means agreed to initially by all members of the Committee, and many questioned the feasibility of extending coverage to a category of dependants to which it would be impossible to give a common, concise definition. (Endnote 22) This widespread concern led to the separation of coverage of other family members needing care or support from that of dependent children and to the possibility of applying this provision of the Convention by stages. (Endnote 23) Furthermore, the precise definition of the nature of the family relationships covered and the extent of care and support required was left to the individual member States (see above). However, the final wording of the relevant text revealed the desire of the Conference to restrict this provision of the Convention, as much as possible, to the neediest cases where the amount of care given by the worker would have a serious impact on her or his ability to participate in economic activity. (Endnote 24)

43. Concerning the coverage of this provision of the Convention, the most important variables are the definition of the family relationships covered and the nature of the care required. Most respondents include the spouse and parents or parents-in-law of the worker, as well as grandparents and grandparents-in-law (for example, Bangladesh, China, Cuba, Islamic Republic of Iran). Siblings and siblings-in-law are often covered, particularly when they are minors or are disabled or unable to support themselves for some other imperative reason (for example, Bolivia, Poland). Other relations, such as cousins, uncles and aunts, and relations of the spouse, are less frequently covered, unless they can be seen as forming part of the same family unit as the worker or have no other relations who can offer care or support (for example, Bangladesh, several provinces of Canada, China, Cuba, Mexico; in the United Kingdom (Hong Kong), these are considered dependants only if forming part of the same household, unlike dependent children). It can be supposed that family relationships in this context are those based on formal legal ties, particularly where relations of the spouse are concerned, but this is specified in only a few cases (for example, Bolivia).

44. As with dependent children, while residence with the worker is not a requirement for the coverage of the family member under the Convention, it is frequently part of the definition of the closeness of the family relationship in national legislation and practice, a particularly significant point where the family relationship is not based on formal legal ties. In fact, in some countries (the Netherlands and certain provinces of Canada) it is not required that the person clearly in need of care and support be related to the worker, as long as he or she can be defined as having a close bond with the worker that can be considered familial in nature. In the Canadian Province of British Columbia, this is defined as having a bond of "mutual affection and support". Definitions are similarly broad in the United Kingdom and the United States, where it is the economic dependence on the worker or the actual care given that determine the nature of the relationship.

45. As mentioned above, several countries have established very generous definitions of other family members in need of care or support. Not all governments, however, have reported on the effect given to this provision of Article 1, paragraph 2, of the Convention. Among member States that have ratified the Convention, only Norway and Sweden have specifically made use of the provision to apply the Convention in stages regarding coverage of these family members (coverage has subsequently been extended to cover many of these cases in both countries, which were among the first to ratify the Convention), but almost all have referred in their reports only (Niger, Venezuela) or primarily (Finland uses precisely this term) to measures concerning responsibilities toward dependent children. Only a few, in particular Portugal and San Marino, refer at any length to measures taken with regard to other family members, such as the elderly.

Coverage of categories of workers and branches of activity

46. Article 2 of the Convention states: "This Convention applies to all branches of economic activity and all categories of workers". Alongside the definition of the nature of the family relationships covered by the Convention, the scope of application of the instruments was a very important theme of discussion in the preliminary deliberations of the Committee. The phrasing of the Convention, aiming to protect men and women workers from restrictions on "... their possibilities of preparing for, entering, participating in or advancing in economic activity" (Article 1, paragraph 1) was intended to provide full coverage not only to those currently in employment, but also to those seeking to enter or re-enter the workforce or to undergo training for employment. (Endnote 25) Further, it was intended that all workers should be covered, whether in full-time, part-time, temporary or other forms of employment, and whether they are in waged or non-waged employment. This point was of particular significance to many member States, due to the large number of workers in part-time and precarious forms of employment or self-employed, particularly in the developing countries. (Endnote 26)

47. It was also agreed in the preparatory discussions that the Convention should cover all workers living in a particular country, whether or not they were nationals of that country. (Endnote 27) This was in line with the concern expressed by participants in the proceedings that migrant workers, in particular, should be covered by the Convention. (Endnote 28)

48. In line with previous ILO instruments, it was further considered that the term "economic activity" would cover all forms of occupational activity, whether in the private or public sectors and with or without a profit motive. (Endnote 29)

49. In the preparatory work, grave concern was expressed that the provisions of the Convention could not readily be applied to all sectors of activity, in particular agriculture and the informal sector. It was pointed out by some constituents that these sectors were already difficult to regulate and were characterized by extreme poverty and instability of employment, particularly in the developing countries. (Endnote 30) Others considered that fairness and universality of application required that the Convention cover all forms of employment and sectors of activity, but agreed that this provision, like those mentioned above regarding other family members in need of care, could be applied by stages when necessary, and in keeping with national conditions.

50. Among those countries that have ratified the Convention, most have applied it to all branches of activity, but several have made express use of the facility afforded by Article 10 of the Convention to extend application in stages to particular categories of workers, or have impliedly taken advantage of this possibility. For example, in Norway, legislation providing, inter alia, for the right to take leave in order to care for children and the right to reduced working hours in view of family responsibilities did not apply at the time of ratification to domestic workers or to workers engaged in agriculture and civil aviation, though its application was extended subsequently in respect of agriculture and civil aviation. In addition, certain rights relevant to the application of the Convention were extended, subsequent to ratification, to persons employed on board Norwegian ships. In its first report on the application of Convention No. 156, the Government of Greece, which ratified the Convention in 1988, indicated that the provisions of the Convention were applied through legislation enacted in 1984. This legislation exempts from its coverage seafarers and several other groups of workers below specified numbers in the private and public sectors.

51. Reservations have also been expressed both by States that have ratified and by some that have not ratified the Convention regarding full coverage of certain categories of workers, particularly with reference to part-time workers. In this regard, the Committee of Experts would consider that in some cases, different treatment of limited categories of part-time workers would not be contrary to the spirit of the Convention.

Application of the Convention in federal States

52. The application of the Convention by federal States was another important consideration for a number of member States in the ratification and application of the Convention. As in other areas, the Convention provides great latitude for application by federal States. In this regard, the Committee of Experts points out that the provisions of Article 10 of the Convention would not necessarily present an obstacle to ratification by federal States, provided that the Convention could be applied immediately throughout the country to sectors under the federal jurisdiction, such as the federal public service, and if it was considered probable that the initial application of the Convention to a given sector of activity in only part of the country would lead to its application to the rest of the country within a reasonable period. (Endnote 31)

The role of employers' and workers' organizations

53. Article 11 provides that employers' and workers' organizations shall have the right to participate, in a manner appropriate to national conditions and practice, in devising and applying measures designed to give effect to the provisions of the Convention. The precise meaning of this last substantive provision of the Convention also gave rise to discussion among member States during the elaboration of the instruments. As with many of the other provisions examined above, the main concern of the Conference in adopting the final texts of the instruments was to assure flexibility of application in keeping with national conditions and circumstances. Systems of labour relations and the role of organizations of employers and workers vary considerably among member States. For this reason, the use of the term "the right to participate" was intended to encourage the full participation of such organizations, rather than to impose a particular form of participation. The Committee of Experts points out that there is no actual requirement for governments to obtain the agreement of employers' and workers' organizations to the measures designed to give effect to the Convention. It further considers that the form and level of participation might reasonably vary according to the nature of the measures concerned -- extending from consultation in the preparation of legislative measures through to direct action by the employers' and workers' organizations in the provision, for example, of child-care facilities. On this last point, many member States have reported that employers' and workers' organizations have played a considerable role in the planning, funding and supervision of such facilities.

Endnotes

Endnote 2

Endnote 3

Endnote 4

Endnote 5

Endnote 6

Endnote 7

Endnote 8

Endnote 9

Endnote 10

Endnote 11

Endnote 12

Endnote 13

Endnote 14

Endnote 15

Endnote 16

Endnote 17

Endnote 18

Endnote 19

Endnote 20

Endnote 21

Endnote 22

Endnote 23

Endnote 24

Endnote 26

Endnote 27

Endnote 28

Endnote 29

Endnote 30

Endnote 31

Cross references
Constitution: Article 19
Constitution: Article 22
Constitution: Article 35
Conventions: C111 Discrimination (Employment and Occupation) Convention, 1958
Recommendations:R123 Employment (Women with Family Responsibilities) Recommendation, 1965