Maternity Protection 2000

Maternity protection of women at work has been of core importance to the International Labour Organisation since its establishment in 1919. The Maternity protection Convention, 1919 (No.3) was among the first international labour standards adopted. It laid out the basic principles of maternity protection: the right to leave, the right to cash and medical benefits, the right to job security and the right to nursing breaks during working hours.

In 1952, Convention No.3 was revised to take into consideration developments in national law and practice, especially in the realm of social security. The Maternity Protection Convention (revised)1952, (No.103) retained the same principal elements of protection, but the means and manner of providing benefits were made more explicit. Medical benefits were to include prenatal, confinement and postnatal care by qualified midwives or medical practitioners, as well as hospitalization if necessary. As regards cash benefits, a minimum income replacement rate of two-thirds of the woman’s previous insured earnings was specified for those benefits derived from social insurance. Nursing breaks were to be counted as working hours and remunerated accordingly where this matter was governed by laws and regulations.

In addition, an accompanying Recommendation, 1952 (No.95) was adopted. This instrument recommends the extension of the leave period to a total of 14 weeks, the increase of cash benefits to equal 100 per cent of the woman’s previous insured earnings, the extension of employment protection, the preservation of seniority rights and the woman’s right to reinstatement. Much of the recommendation focuses on the protection of the health of employed women during the maternity period. Medical benefits are clearly specified, guidance is provided on the establishment of facilities for nursing mothers and their children, and occupational safety and health questions are treated.

There are several other international labour standards which are relevant to issues of maternity protection. These include the Discrimination (Employment and Occupation) Convention, 1958 (No.111), the Workers with Family Responsibilities Convention, 1981 (No. 156) and Recommendation (No.165) and the Part-Time Work Convention, 1994 (No.175).

An other revision of the Maternity Protection Convention

Since the adoption of the Maternity Protection Convention (No. 103) in 1952 and the Recommendation (No.95), women’s employment patterns have changed greatly around the world. Women’s economic activity rates have risen dramatically and women now tend to work throughout their childbearing years. Women contribute a higher proportion of family income than ever before. The importance of maternity benefits for employed women has grown in consequence. Maternity protection measures are viewed not only as fundamental in promoting the health, safe motherhood and economic well-being of pregnant and nursing women but increasingly as a necessary condition for equality in employment.

Since 1952 most ILO member States made considerable progress in providing maternity benefits to employed women. While the vast majority of countries around the world provide paid maternity leave by law and many offer health benefits and employment safeguards, the gap between law and practice remains wide. Uneven patterns of protection result in some women enjoying good benefits, while others are left wholly or partly unprotected. Those most likely to be disadvantaged include agricultural workers, domestic workers, home workers and part-time workers. Even where benefits have been generalized, the gains registered have so far failed to resolve the fundamental problem experienced by most, if not all working women at some point in their professional lives: unequal treatment in employment due to their reproductive role. It should be kept in mind that discrimination on the basis of maternity is costly: to women, their families and in the end to society as a whole.

As of 15 March 2000, 38 out of 175 ILO member States had ratified the Maternity Protection Convention (Revised) 1952 (No. 103). The main reason why there are so few ratifications is that member States found Convention 103 too prescriptive and too detailed. The low level of ratification and the identification of a number of technical obstacles to further ratification were among the concerns that were taken into account in the Governing Body decision in 1997 to revise the 1952 instruments. The first discussion of a proposed new Convention and Recommendation on maternity protection was held in June 1999. The second discussion took place in June 2000, with as result the adoption of the Maternity Protection Convention 2000 and the Maternity Protection Recommendation 2000 by the General Conference of the International Labour Organization on 15 June 2000.

Major differences between Convention 103 and the Maternity Protection Convention 2000

• the scope of the new Convention is much broader and ratifying states are allowed fewer exceptions; this means that considerably more women could have the benefit of the protection of the new Convention;

• a new article concerning the need for health protection has been included;

• the duration of the leave is extended from 12 to 14 weeks;

• a new right to return to the same position or an equivalent position after maternity leave is guaranteed;

• for the first time, there is a prohibition from requiring a test for pregnancy when a woman is applying for employment, except in a very few defined cases;

• member states that ratify the Convention should develop measures to ensure that maternity does not constitute a source of discrimination;

• the provisions on breastfeeding have been strengthened;

• in a new provision, member states should periodically review improvement of the national provisions.

• the period of compulsory leave after confinement remains at six weeks (as in Convention 3 and 103), unless otherwise agreed at the national level by Government and the representative organizations of workers and employers (this can mean an extension or a reduction);

• the protection against dismissal seems to be less strict (....except on grounds unrelated to the pregnancy or birth of the child and its consequences or nursing), but on the other hand the period for protection against dismissal is extended. The burden of proof rests on the employer;

• the level of maternity benefits - 2/3rds of previous income - is extended to a wider range of women. A quite reasonable minimum is provided for those women in Member States with other methods for benefits. Member States whose economy and social security system are insufficiently developed can claim an exception and apply minimum level of benefits at the same rate as sickness or disability benefits.

• the recommended period of leave ought to be 18 weeks (was 14 weeks);

• extra leave in case of multiple births is recommended;

• maternity leave as well as the additional leave in case of illness or complications should be considered as a period of service;

• as well as for maternity leave benefits as for leave in case of illness of complications should be at the rate of the last remuneration;

• the health protection paragraph is reinforced by recommending a risk assessment of the workplace, amongst some other recommended improvements;

• pregnant women ought to get paid leave for medical examinations;

• extended reference is made to recommendable types of leave, amongst which parental leave and adoption leave.

• The Convention was adopted with 304 votes in favor, 22 against, and 116 abstentions. The quorum was 267. The Recommendation was adopted with 315 votes in favor, 16 against and 108 abstentions.

• The new Convention will only come into force 12 months after the date on which the ratifications of two members have been registered with the Director General of the ILO. Until the Maternity protection Convention 2000 comes into force, Convention 103 is still open for new ratifications.

Amrita Sietaram
ACTRAV

Geneva, 21 June 2000