Chapter IV. Terms and conditions of employment and social security

128. Traditional working time patterns characterized by fixed working days and penalties for breaks in service, based on the stereotype of a male breadwinner who relies on his partner to raise children and generally deal with the needs of the family, were not at first challenged when growing numbers of married women entered the workforce. Women workers instead did their best to accommodate their commitments at work and in the home, experiencing considerable stress and fatigue in the process. This included giving up their employment temporarily or working part time to look after a small child, and taking time off or using their annual leave entitlement for such purposes as dealing with administrative matters or taking a child to the doctor. At best, special arrangements, including leave to take care of a young child with a guarantee of return to employment, were introduced for women. However, both approaches had detrimental effects on their employment and promotion prospects.

129. The treatment of women under social security has also long been based on similar assumptions. Social security legislation is often based on a model of society in which the man is the head of the family and the woman benefits from protection derived only from her husband's entitlements. Social security should guarantee men and women equal protection and equal rights; it should not impose a model of society, but take into account the diversity of situations and individual choices. In this respect, the Committee recalls that, in its 1985 general report, it had suggested that consideration might be given to the adoption of new standards on equality of treatment for men and women in matters of social security. The Committee welcomes the initiative taken by the Office to convene a Tripartite Meeting of Experts on this subject in 1994, which will make recommendations concerning the adoption of these new standards.

130. With a view to promoting effective equality of opportunity and treatment between men and women workers, paragraph (b) of Article 4 of the Convention therefore calls for measures which take account of the needs of workers with family responsibilities in terms and conditions of employment and social security.

Terms and conditions of employment

131. Hours of work and the arrangement of working time are of central concern to workers with family responsibilities. Experience shows that special measures in these fields should be taken for the benefit of both men and women workers. Such measures enable workers better to reconcile their work and family responsibilities and encourage men to become more involved in family matters. However, under the pressure of social and economic change, there has been a growth in part-time employment and significant innovations in the arrangement of working time have been introduced over the last two decades, mostly in the industrialized countries. Many of these initiatives were prompted by economic needs rather than concern for the family responsibilities of workers. Nevertheless, family constraints have often been among the considerations taken into account in the design of such schemes. Absence from work to cope with family commitments has also been made easier in several countries.

132. These developments are reviewed below in the light of Paragraph 17 of the Recommendation, which provides that all measures compatible with national conditions and possibilities and with the legitimate interests of other workers should be taken to ensure that terms and conditions of employment are such as to enable workers with family responsibilities to reconcile their employment and family obligations.

General measures

133. While it is in itself an aim of social policy, the improvement of working conditions has been found in practice to be highly supportive of policies for the promotion of equal opportunities and treatment between men and women in employment. Paragraph 18 of the Recommendation points to the usefulness of general measures for improving working conditions and the quality of working life for all workers and calls for "(a) the progressive reduction of daily hours of work and the reduction of overtime; and (b) more flexible arrangements as regards working schedules, rest periods and holidays".

134. Indeed, hours of work are being reduced in a number of countries. While family considerations do not necessarily play a part in decisions to reduce working hours, such measures are none the less in line with the purpose of the aforementioned provision of the Recommendation. This said, it is interesting to note that, for instance, in Australia, the periods for which an employee is required to work may not exceed 40 hours in any period of six consecutive days. (Endnote 1) In addition, several Awards and Industrial Agreements relating to commerce and offices provide for reduced working time from 38 to 37.5 hours per week. A number of other countries report that a reduction in hours of work was achieved recently, often within the framework of collective bargaining. It is foreseen that such a reduction will continue over the next few years, since many of these agreements are to be implemented over time. In Cyprus, several branch agreements negotiated in 1992 (e.g. in construction, clothing, metallurgy) plan to achieve a 38-hour week within the next six years. In France, where normal weekly hours of work were lowered to 39 in 1982, (Endnote 2) several measures on the arrangement of hours of work were introduced in the framework of branch and enterprise level collective bargaining. In Germany, normal weekly hours as established by collective agreements now average 38. In Ireland, the 1989 Programme for National Recovery provided a Framework Agreement on Hours of Work within which employers and trade unions negotiated a reduction of one hour a week in working time without loss of pay where the working week was at or above 40 hours. This measure has now been implemented generally. In Spain, normal weekly hours were reduced from 42 to 40 in 1983. (Endnote 3)

135. Overtime is regulated in most countries through one or several of the following means. A premium wage is paid or compensatory time off is given. Normally, the higher the number of overtime hours worked, the higher the premium becomes. In many countries there is a combination of daily, weekly and annual limits. In addition, authorization, consultation or notification may be required before overtime can be worked.

136. In some countries, the legislation and practice on overtime show a measure of concern for workers with family responsibilities. Thus, family responsibilities may constitute grounds for refusing to work overtime. In Canada, Quebec, (Endnote 4) an employer may not discipline or take other measures against an employee who has refused to work overtime because of his or her unavoidable obligations relating to the care, health or education of a minor child. In cases where overtime is worked, it may be compensated by giving time off rather than monetary compensation if a worker with family responsibilities so prefers. This is also the case in the Province of Alberta. In many countries, overtime may only be worked with the consent of the worker concerned.

137. The use of flexible hours has grown significantly in the industrialized countries. Under flexible hours systems, starting and finishing times and the time of the lunch break may be decided freely by the employees, provided all are present during core periods, which often consist of two to three hours in the morning and in the afternoon. Such schemes present obvious advantages for workers with family responsibilities, who may adapt their starting or finishing times to school hours, or use a time credit to take a half-day off to deal with family matters. The compressed work-week (where the statutory hours are worked over four days instead of five) is another form of working time arrangement that has been appearing in a number of countries over the last few years. While workers with family responsibilities may be happy of an additional day off work, for example to be with children on their mid-week break, the extra long days worked no doubt pose other problems.

138. In Australia, it is generally accepted that flexibility in working practices and conditions to meet the unexpected and routine needs of family life is both necessary to achieve a better balance between work and family and consistent with, or even integral to, productivity and efficiency, as leading companies have found. The Department of Industrial Relations, through the Work and Family Unit, is examining a number of specific types of flexible and innovative working arrangements. A "Workplace Guide to Work and Family", to be published in 1992-93, will help promote the examination of work and family issues in the workplace and encourage the implementation of family friendly practices. The Government of Cyprus reports the introduction of flexible working schedules on an experimental basis. In France (Endnote 5) and Spain, (Endnote 6) the introduction of flexible hours is subject to the agreement of the staff of the enterprise. The Government of Panama explains that trade unions are becoming more interested in flexible working time arrangements; as a result, these are increasingly being introduced in collective agreements. In Sweden, where section 5 of the new Equal Opportunities Act (Endnote 7) which came into force on 1 January 1992, calls on the employer to facilitate the combination, by both male and female employees, of gainful employment with parenthood, care is taken to provide "family friendly" schedules. The Government of Ukraine reports that flexible work schedules were introduced in 1984, but for working mothers only. The Government of the United Kingdom recognizes the popularity and importance of flexible working arrangements, and sees its role as encouraging good practices among employers, stressing that generous and flexible arrangements will enable them to recruit and retain staff. The Government also sets a good example as an employer. The Government of the United States reports that flexible scheduling arrangements include, in addition to flexitime and the compressed work-week, "flexiplace", an arrangement whereby the employee is permitted to work at home or at another approved site away from the firm for all or part of the work-week. According to an unpublished study carried out in 1989 by the Bureau of Labor Statistics, 18.4 per cent of federal employees and 12.2 per cent of private employees reported the availability of flexible schedules in the workplace. Only 8 per cent of the respondents in a private sector survey reported the availability of "flexiplace" working.

139. The idea behind Paragraph 18(b) of the Recommendation, which advocates flexibility when dealing with holidays, is that workers should be in a position to take their annual leave to coincide with part of their children's school holidays. Most reports are silent on this point, although the implementation of this provision is no doubt ensured, to a large extent, in practice, as indicated in the report of the Government of Morocco. Indeed, in France as in many other countries, when it is mandatory for all employees to take their annual leave at the same time, because the enterprise closes, the closure period is normally fixed to fall during the long school break. In Australia, many employees of the public sector are able to negotiate the timing of holidays and employers usually accommodate requests by employees to take annual leave during school holidays. In Belgium, the legislation (Endnote 8) provides that parents may go on leave during the school holidays, although there is nothing to ensure that both parents are entitled to take their holidays at the same time. In Spain, (Endnote 9) when annual leave is taken in turns, priority is accorded to workers with family responsibilities for taking their annual leave at the same time as school holidays. In Tunisia, (Endnote 10) civil servants with family responsibilities are accorded priority of choice concerning their annual leave period.

Shift and night work and transfers

140. Paragraph 19 of the Recommendation provides that the special needs of workers, including those arising out of family responsibilities, should be taken into account in shift-work arrangements and assignment to night work. Paragraph 20 encourages employers to consider family responsibilities, including the place of employment of the spouse and the possibilities of educating children when transferring workers from one locality to another.

141. The Governments of Austria and Bangladesh have reported that there are no statutory provisions reflecting concern for the needs of workers with family responsibilities in connection with assignment to shift or night work. However, in several countries, family needs may well be taken into consideration in practice, as reported by the Governments of Australia, (Endnote 11) Bangladesh and Cyprus. Collective bargaining provisions in the United States introduce, under certain conditions, the possibility for shiftworkers to exchange shifts with colleagues. While this may help to respond to family needs on an ad hoc basis, such arrangements do not provide for the full adaptation to family needs that is suggested in the Recommendation.

142. In the Australian public sector, most transfers occur after staff members have applied for a position in another location; where transfers are compulsory, conditions, which normally include assistance for family members, are more generous. Examples were also given of measures taken by large companies to facilitate family arrangements on transfer. These include a minimum of three months' notice, job search assistance for spouses and financial support when the transfer makes it necessary for the employee's children to attend a boarding school. In Austria, while there is no statutory provision regarding transfers, an unemployed person may be required to take up employment outside his or her area of permanent or temporary residence only if this does not interfere with the maintenance of dependants. (Endnote 12) The Government of Finland notes that relocation must normally be agreed upon by the employer and the worker concerned; in case of grave difficulties, just cause for termination might be invoked. In Spain, (Endnote 13) when a couple is employed by the same enterprise, the spouse of a transferred worker is eligible for transfer to the same duty station if a vacancy exists.

Part-time, temporary or homework

143. Workers with family responsibilities, and especially women, often resort to various forms of employment, such as part-time, temporary or home work, in an attempt to harmonize their obligations. Often, these are poorly protected; they entail discrimination in terms and conditions of employment and limited career prospects. With a view to protecting part-time, temporary and home workers, Paragraph 21 of the Recommendation provides that: (1) their terms and conditions of employment should be adequately regulated and supervised; (2) these terms, including social security coverage, should be equivalent to those of full-time and permanent workers respectively; in appropriate cases, the entitlements of the workers concerned should be calculated on a pro rata basis; (3) part-time workers should be given the option to obtain or return to full-time employment when a vacancy exists and when the circumstances which determined assignment to part-time employment no longer exist.

144. One of the most significant features of part-time work is its concentration among women participants in the labour force. A few reports contain information on the number of part-time workers. In Austria, they represent 19 per cent of all employed women and under 2 per cent of all employed men. In Finland, 7.6 per cent of workers are employed part time, three-quarters of whom are women. Information available to the Office indicates that, in 1990, a minimum of two-thirds of part-time workers were women, among the member countries of the Organization for Economic Cooperation and Development (OECD) countries, the figure reaching a maximum of nine out of ten in some of them. (Endnote 14) In the United States, approximately 20 per cent of the total workforce is employed part time and, in a 1990 survey of 837 major employers, (Endnote 15) 35 per cent of private sector employers reported the availability of part-time work schedules in the workplace. None of the reports discuss the number of hours worked by part-time workers, a point of interest since, as will be explained below, this may be a condition of eligibility for certain benefits. Neither do they indicate whether part-time workers have freely chosen to reduce their hours or have been prevented from taking full-time employment for reasons such as a lack of adequate child care.

145. Several reports (Endnote 16) note that measures have been taken recently to encourage the development of part-time work. Permanent part-time work was introduced in the Australian federal public sector in 1986. In the United States, almost every federal agency is required by law to provide a programme of part-time employment, including job-sharing (a form of part-time employment where two part-time employees voluntarily share the duties and responsibilities of one full-time position), which "promotes part-time career employment opportunities at all grade levels" (Endnote 17) Interest in this form of employment is also shown by the fact that, in several countries, (Endnote 18) new legislation is under consideration, or has been enacted over the past few years. (Endnote 19) In Australia, part-time work is regulated under several state laws or awards. In New South Wales, employers and employees may now formalize part-time work where an award or agreement otherwise restricts the use of this form of work; pro rata entitlements and the right to return to one's former position may be negotiated. In Victoria, the ceiling of part-time work in the workforce established in agreements with the unions has been raised from 5 per cent to 10 per cent. The 1991-94 Employment Equity Strategies include efforts to design jobs in order to ensure that part-time positions contain diversified and rewarding work and provide scope for further skills development. In Queensland, part-time employees receive pro rata leave benefits, and in Tasmania, funding constraints would be the only obstacle to a part-timer returning to full-time employment. Israeli workers working shorter hours as agreed in employment contracts are entitled to wages corresponding to the hours worked (Endnote 20) and are entitled to sick pay. (Endnote 21) In Tunisia, employees in the public service and the public sector now have the right to request to work half-time. (Endnote 22) Part-time workers receive half the remuneration which would be paid to a full-time worker in the same grade and category, and benefit from the same annual leave entitlement. Family allowances are paid in full. On the other hand, some countries (Endnote 23) report that part-time work is not regulated, while others (Endnote 24) do not discuss the issue at all.

146. In a few countries, measures have been introduced to give parents, and in some cases other workers with family responsibilities, the right to work on a part-time basis. Some provisions apply to all workers generally, while others are limited to a given sector, e.g. the public service. In Japan, (Endnote 25) employers must, at the request of a worker who does not take child-care leave, accept that the worker concerned works part time or is provided with flexible working arrangements. The employer must refrain from assigning overtime to that worker or provide child-care facilities. In Portugal, parents of a child under the age of 12 are allowed to work part time. Unless otherwise agreed, working time should be half of the normal hours of work and the period of part-time work should be from six months to three years. Part-time work during this period counts proportionately towards seniority and entitles the worker to proportional remuneration and other benefits. (Endnote 26) In Spain, the working day may be reduced to between a third and a half of its normal duration, for workers who have a child who is less than 6 years old or is mentally or physically handicapped. (Endnote 27) The right of parents to apply for part-time work may be complemented by eligibility for a financial benefit. Such measures are usually linked with parental leave and are described below.

147. A few countries provide a legal definition of part-time work by reference to the number of hours worked. This has been fixed at 30 hours a week in Finland; less at least one-fifth of the statutory weekly or monthly hours in France; and less than two-thirds of the usual working hours in the activity concerned in Spain. In the United States, where flexible working time arrangements are, in general, matters for negotiation in the employment relationship and a definition of part-time work is not provided for in legislation, the Government notes that a part-time employee is an employee who works fewer than 35 hours per week.

148. Whereas many countries do not define part-time work, it is frequent for laws or regulations dealing with specific aspects of employment to establish certain eligibility requirements or qualifying conditions, in the form of minimum earnings or a minimum number of hours worked, below which workers are not entitled to certain benefits, in particular social security benefits. Thresholds may also apply to the right to obtain a written contract, to protection against dismissal or redundancy, or to paid annual leave. Eligibility requirements may demand that a certain number of hours be worked each day and that there be continuous employment with the same employer for a given period. For example, in the United Kingdom, employment rights such as protection against dismissal or redundancy and maternity absence with the right to return to work are available to employees who are employed to work at least 16 hours a week and have completed two years' service with the same employer, or five years' service for those who work at least eight but less than 16 hours a week. Once the threshold has been attained, benefits and allowances are generally payable on a proportional basis.

149. In Austria, the earnings threshold for compulsory social security coverage was fixed at 2,924 Austrian schillings per month in 1992. Workers earning less were covered only by the employment injury scheme. In Germany, part-time workers are excluded from compulsory social security coverage if regular employment is carried out for less than 15 hours a week and the monthly remuneration does not regularly exceed 500 German marks (1992 figures). In other countries, such thresholds exist only for supplementary pension schemes such as, for instance, in Canada. Thresholds for unemployment protection are generally even higher and in a number of countries, such as Australia, Belgium, Germany and New Zealand, part-time workers working less than half-time are not eligible for unemployment benefit.

150. In some countries, part-time workers become entitled to benefits only after having worked for a certain period. In France, for example, in order to be entitled to medical care and sickness benefits in their own right, part-time workers must have worked for 200 hours in the previous three months or 120 hours in the preceding month. In order to qualify for a pension, minimum quarterly contributions have to be paid based at least on earnings of 200 times the hourly minimum wage. However, part-time workers who earn less than this may accumulate their earnings over a longer period in order to reach the required quarterly minimum. (Endnote 28)

151. A trend may be noted from several reports towards a lowering of existing thresholds. For example, in Cyprus, the legislation on termination of employment, which provides for the payment of compensation to employees who are dismissed unlawfully or on grounds of redundancy, protects employees who work at least 28 hours per week. Within the framework of tripartite consultations for amendments to this legislation, an agreement was reached among the social partners to reduce to 24 the number of hours that must be worked. In Germany, the minimum weekly working time to be covered by the unemployment scheme was reduced from 20 to 18 hours in January 1988. In the United Kingdom (Hong Kong), where entitlement to statutory benefits under the Employment Ordinance is determined according to whether the worker concerned has been working under a continuous contract for the same employer, the requirement of having worked not less than eight hours per week, three days a week for not less than four consecutive weeks was amended in 1990; all workers are now covered if they work not less than six hours a week for not less than four consecutive weeks. In Ireland, social security coverage was extended to part-time workers working less than 18 hours a week provided their earnings exceeded 25 Irish pounds per week. The Worker Protection (Regular Part-time Employees Act, 1991) applies to employees who have been in the service of an employer for at least 13 weeks; the threshold used to define regular part-time work was lowered from 18 hours to eight. The Act extends to regular part-time employees the benefits of the legislation relating to minimum notice and terms of employment, maternity leave, unfair dismissals, redundancy payments, insolvency, holiday entitlement and worker participation. In the Netherlands, the requirement of working for at least one-third of normal hours, which applied in respect of the minimum wage legislation, has been repealed.

152. The usual position adopted with regard to the payment of overtime is that no premium rates are payable to part-time workers until they have worked a full day. However, in many cases, collective agreements provide for the overtime premium rate to be payable from the first hour worked in excess of the part-time worker's agreed schedule. In France, "complementary hours" cannot exceed a third of the weekly or monthly hours set out by contract.

153. Arrangements to return to full-time employment are generally voluntary ones agreed to between the employer and the worker concerned, as in Austria, Canada, the United Kingdom. However, in a number of countries, (Endnote 29) part-time workers are to be given priority for filling full-time positions that become vacant. In certain countries, (Endnote 30) employers may be under a statutory obligation to inform part-time workers of full-time vacancies. Civil servants are more likely than private sector employees to be entitled to return to full-time employment. The Government of Lithuania reports that the legal mechanisms for returning to full-time work need to be revised.

154. Few reports discuss temporary work. Temporary workers would seem to be covered by general legislation and some social security benefits, except where qualifying periods are laid down, e.g. for annual leave. In a number of countries, the legislation specifies the time span after which a worker who has been engaged on a casual basis becomes a permanent worker. (Endnote 31) In Finland, a fixed-term contract can be signed only under the conditions laid down in the Employment Contracts Act, i.e. when the nature of the work or the operation of the enterprise justify such a contract. In Panama, temporary work is mainly done in rural areas.

155. A few reports refer to the regulation of homework. In Australia, Federal and State Awards provide for security of employment and protection of terms and conditions of employment for outworkers, although in Queensland the Industrial Relations Act of 1990 does not provide a definition of homeworkers. In Austria, (Endnote 32) although a homeworker is not considered an "employee" under the legislation, delays for the completion of the work put out should be set out in such a way as to ensure that statutory hours of work are not exceeded. In Austria and Germany, homeworkers are also covered by pension insurance and the contribution is shared equally between them and the customer. In Belarus, a written contract must stipulate the responsibilities of both parties. Standards of output may be adapted to conditions in the home. Leave entitlements are regulated. In Canada, the situation varies in the different provincial jurisdictions. In British Columbia, the definition of "work" (which is likely to be examined in a forthcoming review of the legislation) excludes "time spent by an employee in his own living accommodation"; no regulations have been made to establish conditions of employment for homeworkers who are dependent contractors. In Manitoba and Newfoundland, statutory provisions apply to homeworkers, provided, in the latter province, that they fall within the definition of "employee". In Ontario, where homework is defined, homeworkers are covered only under the minimum wage, vacation with pay, pregnancy and parental leave provisions of the Employment Standards Act. (Endnote 33) In a number of other countries, (Endnote 34) a specific part of the Labour Code regulates homework. In Japan, the wages and occupational safety and health requirements of industrial homeworkers are regulated. (Endnote 35)

156. A number of reports state that part-time, temporary and home workers enjoy the same terms and conditions of employment as full-time, permanent workers. (Endnote 36) Others (Endnote 37) indicate that the terms and conditions of such workers are mutually agreed upon between the employers and workers concerned, by contract. In Australia, the Report of the Enquiry into Equal Opportunity and Equal Status for Women recommended that industrial awards be amended to include provision for permanent part-time employment and casual employment and to include entitlement to the same non-wage benefits, on a pro rata basis, available to permanent staff.

Special leave entitlements

157. Paragraph 22(1) of the Recommendation provides that either parent should have the possibility, within a period immediately following maternity leave, of obtaining leave of absence (parental leave), without relinquishing employment and with rights resulting from employment being safeguarded. Subparagraph (2) leaves it to each country to determine the length of the period following maternity leave as well as the duration of the leave and its conditions, by one of the means referred to in Paragraph 3 of the Recommendation, including laws or regulations, collective agreements, works rules, arbitration awards, court decisions or a combination of these methods. Under subparagraph (3), such leave may be introduced gradually, e.g. in a given sector, or for enterprises employing a certain number of workers. As provided for in Paragraph 4 of the Recommendation, gradual introduction does not mean that the granting of such leave may be restricted to one parent only.

158. As is discussed in the following paragraphs, a number of countries have made provision for the granting of parental leave and some have enacted legislation according employees the right to leave in order to care for sick children or other dependants. Comprehensive legislation which enables employees to take leave for a range of family situations is, however, unique. In the United States, the Family and Medical Leave Act (Endnote 38) which came into force recently, requires employers (employing more than 50 people within a specified radius) to allow employees to 12 weeks' unpaid leave during any 12-month period because of the birth or adoption of a child, the placement of a foster child, the serious illness of a child, a spouse or a parent, or because of the employee's own serious health condition. The Act covers people who have worked for at least 12 months for the employer or for at least 1,250 hours during that period, though it allows employers to deny leave to the highest-paid 10 per cent of workers if such denial is necessary to prevent substantial and grievous economic injury to the business. Workers may substitute any accrued paid vacation leave, personal leave or family leave for any portion of the unpaid 12-week period. Or, employers may require the employee to substitute paid leave for the unpaid portion. In other words, if a company already grants six weeks of paid leave, the company must also grant six weeks of unpaid leave to reach the 12 weeks. The company does not have to offer the 12 weeks' unpaid leave after the paid leave has been taken. The Committee notes this development with interest, but would like to point out that the use of paid vacation leave to cover absence for family reasons, an option under the Act, is not in conformity with the principles of ILO standards concerning paid annual leave which aim at enabling employed persons to take rest and relaxation during such periods. (Endnote 39)

159. Legislation is reported to provide for parental leave in Australia, (Endnote 40) Austria, (Endnote 41) Canada, (Endnote 42) Israel, (Endnote 43) Japan, (Endnote 44) the Netherlands, (Endnote 45) New Zealand, (Endnote 46) Norway, (Endnote 47) Portugal, (Endnote 48) Spain, (Endnote 49) Sweden (Endnote 50) and in the United States. (Endnote 51) However, in some countries, (Endnote 52) a father may only take such leave if the mother foregoes her right to leave for part or all of it. (Endnote 53) In Austria, fathers are entitled to parental leave when the occupation of the self-employed mother prevents her from looking after the child. The Government of Egypt reports that public servants may be granted unpaid leave for reasons invoked by themselves and which the public authority accepts. Such a measure, which is in force in several other countries, cannot, however, be considered as giving effect to this provision of the Recommendation, which aims to establish that parental responsibilities are a just cause for obtaining leave. Finally, other countries report that parental leave is not foreseen in the legislation. (Endnote 54) The Government of the United Kingdom notes that a variety of voluntary arrangements for parental leave exist in the country, but there is no relevant statutory provision.

160. The duration of parental leave varies. In Australia, either parent may take up to 52 weeks of unpaid leave so as to assume the role of primary care giver, and the leave cannot extend beyond the child's first birthday or beyond the first anniversary of the child's arrival in the home in the case of adoption. Both parents may not take leave at the same time except for one week at the time of birth. In New Zealand and Norway as well, parental leave covers the first year of the child. In Canada, the duration of parental leave varies from province to province between 12 and 44 weeks. In Finland, the 170 days subsequent to the maternity leave period during which an allowance is payable may be taken by the father or shared between both parents. In Spain, (Endnote 55) the last four weeks of maternity leave may be used by fathers, provided the health of the mother allows her to resume work. In Sweden, either parent has a statutory right to leave of absence from work until the child is 18 months old. Parental leave may be available until the end of the child's second year of life (Austria), until the child is 3 (France and Spain). In Finland, parents may also take child-care leave after parental leave, until the child is 3 years old.

161. Parental leave is not normally remunerated, but, as discussed below in the section on social security, workers may receive allowances.

162. Certain countries provide for eligibility requirements for parental leave. Thus, in Israel, where workers may also request leave due to family illness, they must have worked with the same employer or at the same place of employment for a period of not less than 24 months. The leave period cannot exceed a period equal to one-fourth of the number of months worked, with a maximum period of 12 months. In France, workers must have worked for at least a year at the time of the birth of the child; in enterprises employing fewer than ten workers, the employer can refuse to grant parental leave on "just grounds".

163. The safeguarding of rights resulting from employment is treated in different ways in different countries. Protection against dismissal is ensured in a number of countries including Austria (up to four weeks after the worker resumes work), Finland, France, Germany, Japan, New Zealand, Norway and Sweden. In Spain, workers on unpaid leave have a prior claim to reinstatement. Where special benefits are payable on a pro rata basis, they are normally not due for periods not worked, as in Austria. As far as entitlements related to the length of service are concerned, periods of parental leave are taken into account in some countries (e.g. Canada, Spain during the first year), and in others not (e.g. Austria). In France, they count for half. However, in several countries (including Australia, Austria and Germany), the provisions of collective agreements may be more generous. The effect of periods of parental leave on the calculation of pension benefits is discussed below in the section on social security.

164. Regarding the period during which the leave may be taken, this is generally to start immediately after the end of maternity leave. Except in the countries where parental leave includes maternity leave (e.g. Australia and the Scandinavian countries), the period to be taken by the father or the mother is not regulated. The legislation usually spells out the amount of notice that workers must give to their employer of their intention of taking parental leave and of resuming work at the end of such leave.

165. As mentioned before, parental leave may be combined with part-time work arrangements. In Austria, parents may apply to work on a part-time basis, either together during the child's second year or one parent during the child's second and third year. A part-time agreement of this kind must be agreed on with the employer, but legal steps can be taken to obtain the employer's consent when the latter does not have material grounds for refusing the arrangement. In France, an Act of 1984 (Endnote 56) provides that parents may work half-time as an alternative for parental leave. All employees who have worked for at least one year prior to the date of birth are eligible, although in enterprises with fewer than 100 workers, the request can be refused if it is considered to be prejudicial to the smooth running of the enterprise. Half-time work for child care is counted as full-time work for seniority purposes, and the employee has a right to be retrained if there have been changes in techniques and methods of work during the period the employee was working part time. Since 1990, (Endnote 57) Finnish parents may work on a part-time basis one at a time, with working time reduced to six hours a day or 30 hours a week until the end of the year in which the child starts compulsory schooling. In addition to proportional pay for the time worked, the worker receives state compensation amounting to a quarter of the home care allowance. In Sweden, instead of taking full-time parental leave with financial compensation during the child's first year, one of the parents may continue to work part time on proportional pay and receive financial compensation for the time that is not worked. (Endnote 58)

166. In Belgium, although parental leave per se does not exist, a system of "career breaks" was introduced in 1985. (Endnote 59) Workers employed in the same enterprise for at least 12 months can request total interruption of their professional career or half-time work. Interruptions in service are subject to the employer's agreement and an allocation is paid if the worker is replaced by a previously unemployed person. The measure proved very popular, but its use by women to accommodate family needs caused debate. In 1990, the minimum length of the break, which was six months, was reduced to 12 weeks when the break was taken for child-care purposes, and fathers were also entitled to benefit from the provision. (Endnote 60)

167. Few countries provided detailed statistics of the numbers of men and women who use parental leave. In Austria, at the time of reporting, barely 500 men were on parental leave, as opposed to 71,300 women. In Finland, about 4 per cent of fathers exercised their right to parental leave in 1990, although 40 per cent took a few days' paternity leave. The Government of Israel indicates that many more women than men avail themselves of the possibility. In Sweden, fathers have steadily increased their number of benefit days during the child's first year. (Endnote 61) Under section 10 of the Equal Opportunities Act, (Endnote 62) an employer with more than ten employees has to draw up an annual equal opportunities plan including measures to facilitate the taking of parental leave by men.

168. A large number of reports refer to the measures taken to provide maternity leave and nursing breaks or adapt working conditions for women workers or working mothers, for example by prohibiting that they be assigned to shift or night work or offering them the possibility of taking periods of unpaid leave to care for a newborn child. These measures are not summarized here, nor are the associated social security benefits discussed in the next section. Maternity protection is governed by other ILO standards. (Endnote 63) A report on the application of these Conventions was submitted to the Governing Body at its 219th Session (February-March 1982). The Office is currently carrying out a survey of maternity protection legislation and practice in member States. In addition, measures for the protection of maternity have quite a different purpose to that of the standards dealt with in this report. Their aim is to recognize a biological and social function which is specifically female and to ensure on the one hand the protection of the health of future mothers and their children, and, on the other, the protection of women against discrimination on the grounds of their childbearing role.

169. Furthermore, where the possibility of taking extended leave to care for a young child is restricted to the mother only, as was foreseen in the Employment (Women with Family Responsibilities) Recommendation, 1965 (No. 123), this may be, in the long run, to the detriment of women workers' career opportunities. It also constitutes discrimination against men. Such measures are in fact in direct contradiction with the standards on workers with family responsibilities. Not only was Recommendation No. 123 superseded by the Recommendation here surveyed, but the possibility of applying the new standards by stages, which is provided for under their terms, refers to the measures to be introduced and not to persons. Whatever measures are introduced "shall apply in any case to all the workers covered by Article 1, paragraph 1" (Article 10 of the Convention; a similar provision is contained in Paragraph 4 of the Recommendation).

Leave in case of illness in the family

170. Paragraph 23 of the Recommendation provides for a worker, man or woman, with family responsibilities, to take leave in case of illness in the family: subparagraph (1) deals with leave in the case of the illness of a child, and subparagraph (2) deals with leave in the case of the illness of another member of the worker's family who clearly needs that worker's care and support. Subparagraph (3) provides that the duration and conditions of such leave should be determined in each country by one of the means referred to in Paragraph 3 of the Recommendation.

171. The right to leave in order to care for sick children (usually involving a few days of absence) exists in a number of countries. Three situations may be observed. In some countries, workers have the right, under legislation or collective agreements, to a few days of paid leave for this purpose. For example, in Finland a worker with a child under 10 years of age may be absent for up to four days per instance of illness. In a certain number of countries, the employer has to grant the days off, while the health insurance covers the wages and salaries. In Sweden, parents are entitled to up to 90 days per child annually up to and including the year in which the child is 12 years old. Parents of children aged 4-12 can also take time off in order to take part in activities at the child's school. Such absences are covered by parental insurance. In other countries, the legislation or collective agreements expressly provide that a fraction of the number of days a worker is entitled to sick leave may be used in the case of the illness of a child. (Endnote 64) This amounts to legalizing what often happens in practice. There are also countries (e.g. Poland, Singapore), where the relevant provision of the Recommendation is not implemented, since only mothers are eligible for such leave.

172. In some countries, the requirements of subparagraphs 1 and 2 are dealt with simultaneously, and workers are entitled to a few days of leave per year to take care of a sick dependant in the same household (child or family member). In Austria, (Endnote 65) paid nursing leave of up to the maximum weekly working time per year is available. In other countries, (Endnote 66) compassionate leave may be used for this purpose. Finally, some reports (Endnote 67) indicate that no such leave is available. In a number of countries (e.g. Canada, Panama, San Marino, the United Kingdom and the United States), emergency leave is, or is becoming, available under collective agreements or enterprise practices. In the latter case, as noted in the report submitted by the Government of Canada, the granting of such leave may be subject to the discretion of an employee's supervisor. The Government of Cyprus reports that the possibility of granting family illness leave is being examined by a technical committee of the Labour Advisory Board which has been set up to consider whether ratification of the Workers with Family Responsibilities Convention, 1981 (No. 156), is feasible in view of the social and economic conditions in the country.

Social security and fiscal measures

173. Paragraph 27 of the Recommendation provides that social security benefits, tax relief, or other appropriate measures consistent with national policy should, when necessary, be available to workers with family responsibilities. The reports submitted reveal that this provision has not always been clearly understood. As indicated earlier in this report, the standards under review aim at helping workers with family responsibilities to combine employment and family responsibilities in order to promote equality of opportunity and treatment in employment between men and women and between workers with family responsibilities and other workers. Paragraph 27 of the Recommendation refers to fiscal measures, which can have a significant influence on the decision of parents to take up work. Taxation systems should be designed so as not to discriminate against couples where both spouses work. Several countries provide either separate taxation or a system of family splitting, under which the family's overall income is added up and divided by the number of family members. Other countries provide for an option which allows the workers concerned to decide which system is most suitable in their circumstances.

174. A number of countries (Endnote 68) report specific tax relief measures allowing tax deductions for the costs involved in employing domestic staff, using child-care services and facilities and caring for a disabled relative. In France, social security contributions for persons employed in the home to care for small children are covered by the Family Allowances Fund. (Endnote 69)

175. Paragraph 28 of the Recommendation provides that, during the leave of absence referred to in Paragraphs 22 and 23, the workers concerned may, in conformity with national conditions and practice, and by one of the means referred to in Paragraph 3 of the Recommendation, be protected by social security. In practice such protection may involve either the payment of wage replacement benefits or the maintenance of social security coverage for various contingencies or both.

176. Where legislation or collective agreements provide for paid family leave, including parental leave and leave to care for sick children or family members, leave periods are generally equated to periods of paid employment; social security rights are then fully safeguarded. When family leave is unpaid, as parental leave mostly is, benefits may be financed either out of tax revenues, as in Germany, or by a social insurance fund. This method is used in the Nordic countries, where parental insurance is an integral part of the health insurance system. In Austria, the benefits are granted under the unemployment insurance. In Austria and Germany, the parental allowance is a flat-rate benefit. In Austria, the benefit amounts to 5,159 Austrian schillings per month for a married couple or 7,717 Austrian schillings for a single parent, up to the second year of the child. In Germany, the benefit is 600 German marks, up to the third year; from the seventh month on, the benefit is subject to an income test. In Sweden, in contrast, the allowance is related to previous covered earnings. (Endnote 70) In Norway, a parental allowance, which is equal to cash sickness benefits, is payable to the father for up to 72 days, but only when the mother resumes employment before the end of the 24-week period during which maternity allowance is payable to her and the father ceases work to care for the child. The situation is similar in Finland, where parental allowance can be paid to the father for 170 working days, when the mother cedes her right to him. In France, parental education allowance is payable under certain conditions, and is only available from the third child on, until age 3.

177. Health care coverage is often provided free of charge during parental leave. In some countries, (Endnote 71) medical care is provided to all residents and the fact of being on leave has no implication on eligibility. Where medical care is provided by a sickness insurance scheme, the insurance of the worker on leave is maintained free of charge in France (for one year) (Endnote 72) and in Germany (for three years). (Endnote 73) In Austria, dependent spouses may be covered by the sickness insurance of their partners; however, this arrangement obliges single parents to take out voluntary insurance.

178. A recent trend towards crediting child-rearing periods in pension schemes may be observed in a number of Western European countries. Such a measure was frequent in the former socialist countries of Central and Eastern Europe, where, however, it concerned leave periods available only to women. In Poland, where fathers are entitled to use parental leave in certain cases, time off for child care is credited in the pension scheme.

179. The decision to credit child-rearing periods for pension purposes may respond to various policy options. The intention may be to recognize the valuable contribution made by child-rearing parents to society as a whole. It may be to extend social security protection to workers with family responsibilities. It may also be to protect such workers from restrictive measures. In Germany, for instance, a 1984 reform limited eligibility to invalidity benefits to those who had worked in insured employment for at least three of the five years preceding the contingency; however, any period a parent had spent out of employment in caring for a child under five years of age was disregarded in the five-year qualifying period.

180. In a number of countries, child-rearing may be compensated by increased benefits. In France, the retirement pension is increased by 10 per cent if either spouse has raised at least three children. (Endnote 74) However, such measures are rather an exception. Most countries use the technique of equating periods of parental leave, fully or in part, to insurance periods, as, for example, in Austria (two years), France (three years), Germany (three years for children born as from 1992), Italy (six months), Portugal (two years) or Spain. (Endnote 75) Where the amount of benefits depends not only on (selected) final earnings, but on the overall earnings during the whole working life, a specific value may be attributed to such credited periods, (Endnote 76) or they may be deleted from the calculation of the average. (Endnote 77) Child-care periods are not always credited free of charge; in some countries (e.g. Austria), (Endnote 78) the law confines itself to allowing or facilitating voluntary insurance, while in Luxembourg, the State pays the required contributions (for up to two years).

181. A completely different approach has been adopted in Japan, where employers continue to pay their share of social security contributions during the period of parental leave. Many collective agreements provide that employers also pay the employee's share, but are entitled to recover this once the parent has resumed work. However, the employer often waives such recovery under certain conditions (e.g. when employees return to their previous post after parental leave and continue to work in that post for a minimum period). (Endnote 79)

182. The real impact of credited child-rearing periods on the level of benefits depends to a large extent on the pension formula. Where the range of benefits is extremely limited by minimum or maximum levels, or where only flat-rate benefits are provided, the impact is much less than in schemes which are strictly related to earnings and contribution. On the other hand, schemes providing uniform basic benefits tend to be less disadvantageous for workers who interrupt their occupational activity to bring up young children, in particular where those benefits are only based on a residence test. (Endnote 80) However, most of these schemes are supplemented by a second tier of benefits related to employment. In view of the private nature of such schemes, it is particularly difficult to impose specific regulations. In Sweden, where the earnings-related supplementary pension scheme (ATP) is also regulated by law, periods of parental leave have been credited since 1982.

183. When workers cannot be reintegrated after parental leave, the availability of unemployment benefits becomes an important consideration. Article 26 of the Employment Promotion and Protection against Unemployment Convention, 1988 (No. 168) explicitly provides for unemployment coverage of, among others, those workers who are looking for a work "after a period devoted to bringing up a child or caring for someone who is sick, disabled or elderly" (subparagraph (d)). In Germany, periods of parental leave are counted for entitlement to unemployment benefits. It seems that other countries have adopted similar measures, although the reports examined did not provide specific information in this respect. (Endnote 81)

184. Child-rearing periods may also influence the duration of payment of unemployment benefits. For example, in the Netherlands, time spent on child-care leave is included in prior employment for the purpose of calculating the qualifying period. Child-rearing periods are counted at full rate, when the child is under 6, and at half rate for a child aged 6 to 12.

185. As indicated in paragraphs 170-172, leave of absence is available in a number of countries in the case of the illness of a dependent child or of another member of the worker's immediate family who needs that worker's care or support (Paragraph 23 of the Recommendation). Where such leave is unpaid, a number of countries provide sickness benefits for a limited period to replace, at least partially, lost income. Such benefits are available for one week per year in Austria, 30 days per year for children under age 10 or 15 days per year for children over 10 in Portugal, and 90 days per year for children under 12 in Sweden. The period during which the benefit is payable is often extended in the case of single parents, as in Germany, where single parents are entitled to 20 days (instead of ten) for children under age 12. The same applies in Norway, in connection with children up to 10 years of age. In Austria, or Portugal, the benefit is also payable in case of the illness of a relative, and in Sweden, 30 additional days are available for the care of relatives.

186. Leave for family reasons is usually limited to a few days while, especially in the case of handicapped persons, long-term care may be needed. Some countries are considering, or have already introduced, particular benefits for persons caring for disabled relatives. In Norway, for example, the sickness benefit during child-care leave is extended to 20 days (40 days for single parents) when the person has the care of a chronically sick or functionally handicapped child. Some countries grant a specific carer's pension (Australia) (Endnote 82) or an invalid care allowance (United Kingdom). (Endnote 83) However, where such benefits are paid only to providers of care who stop being gainfully employed (as in the examples just given) they are not relevant to the application of the instruments since they do not help to combine work with family responsibility.

187. Paragraph 29 of the Recommendation stipulates that a worker should not be excluded from social security coverage by reference to the occupational activity of his or her spouse or from entitlement to benefits arising from that activity. It would appear that much progress has been made in this direction since the adoption of Convention No. 156 and Recommendation No. 165. A number of reports (including those from Angola, Austria and Sweden) emphasize that social security protection is provided to all workers irrespective of their family responsibilities. The same seems to apply in other countries, even if they have not mentioned it explicitly. In most countries where legislation had previously discriminated against, for example, married women by excluding them from social security coverage, measures have now been taken to correct the situation and to confer on married women workers full status as insured persons in their own right. However, in Malta, married women are still exempted from social insurance coverage by virtue of section 6(a) of the Social Security Act, 1987.

188. Family employment poses special problems. In a number of countries, including Belize, Cyprus, Ireland, Pakistan, the Philippines and Spain, an employer's spouse and children living under his or her roof may be excluded from social security coverage as far as they work for a family undertaking. In other countries, the exclusion is limited to unpaid family labour (e.g. Barbados, Haiti, Jamaica). Such an exclusion generally affects women to a greater extent than men. While a number of ILO standards on social security (Endnote 84) actually permit such exclusions they are not necessarily recommended. (Endnote 85) The rationale for this measure is that it is difficult to assess the amount of work which is done for the home and for the family enterprise, and to estimate the value of the latter, since there is frequently no cash remuneration. In addition, there may be a risk of collusion between the spouses with a view to obtaining the highest possible return for the contributions paid. Since a large number of countries do not provide for such an exclusion, it would seem that these difficulties are either acceptable or can be contained through appropriate safeguards or controls. (Endnote 86)

189. A number of social security benefits are subject to a means or income test, under which, as a rule, the income taken into account is that of the whole household rather than of the individual beneficiary. This may mean that benefits are denied to a couple because of the spouse's income. The technique pursues a legitimate aim, which is to target benefits to those in need. Such targeting of benefits can generally be regarded as in line with national conditions and possibilities. In addition, means-tested benefits which take the whole family income into account are, as a general rule, increased for beneficiaries who have family responsibilities.

190. Paragraph 30 of the Recommendation provides that the family responsibilities of a worker should be an element to be taken into account in determining whether employment offered is suitable in the sense that refusal of the offer may lead to loss or suspension of unemployment benefit. In particular, where the employment offered involves moving to another locality, the considerations to be taken into account should include the place of employment of the spouse and the possibilities of educating children. (Endnote 87)

191. The report from the Government of Austria refers to a relevant provision in the country's Unemployment Insurance Act. (Endnote 88) In Germany, the question is regulated in an Ordinance issued by the governing body of the Federal Employment Institution. (Endnote 89) In other countries, such as Cyprus and France, the reports indicate that, even though there are no explicit regulations, family responsibilities are actually taken into account when assessing the availability for placement of an unemployed person.

Endnotes

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Cross references
Constitution: Article 19
Constitution: Article 22
Constitution: Article 35
Conventions: C168 Employment Promotion and Protection against Unemployment Convention, 1988