87th Session
Geneva, June 1999

1. At its first sitting on 2 June 1999, the International Labour Conference set up the Committee on Maternity Protection. The Committee was originally composed of 184 members (77 Government members, 46 Employer members and 61 Worker members). To achieve equality of voting strength, each Government member entitled to vote was allotted 2,806 votes, each Employer member 4,697 votes and each Worker member 3,542 votes. The composition of the Committee was modified ten times during the session and the number of votes attributed to each member adjusted accordingly.⁽¹⁾

2. The Committee elected its Officers as follows:
 

3. At its 17th sitting, the Committee appointed a Drafting Committee composed of the following members: Ms. S. Khribch (Government member, Morocco), Mr. F. Dreesen (Employer member, Denmark), Ms. J. Beresford (Worker member, New Zealand), and the Reporter of the Committee, Ms. L. Samuel (Government member, Cyprus).

4. The Committee held 19 sittings. The Committee had before it Reports V(1) and V(2) prepared by the Office on the fifth item of the agenda of the Conference: "Maternity Protection".

Introduction

5. The representative of the Secretary-General presented Reports V(l) and V(2), which had been prepared by the Office to serve as a basis for the Committee's discussions, and in particular the Proposed Conclusions at the end of Report V(2). Report V(l), which outlined recent developments in law and practice in member States, noted the challenge of meeting the maternity protection needs of working women at a time when more women than ever remained economically active during their childbearing years. Report V(2) was prepared on the basis of replies to a questionnaire sent out to member States. The large number of replies received -- from 112 governments and an even larger number of employers' and workers' organizations -- reflected the importance of maternity protection as a prerequisite to women's full participation in the labour market. Several replies had stressed that maternity protection was essential in promoting gender equality because women's reproductive role was one of the significant reasons for discriminatory practices. Health protection for pregnant women and nursing mothers was also stressed by many respondents as a key element. Many replies emphasized that the new standards should take into account changes in national law and practice since 1952. Many viewed the revision process as an opportunity to adopt new standards which, while ensuring protection, would provide greater flexibility in defining and implementing particular measures.

6. The representative of the Secretary-General highlighted the content of the Proposed Conclusions and the major issues taken into account in drafting them. Maternity protection schemes were complex and varied considerably between countries. They incorporated diverse elements, which were provided for through various legal instruments, the nature and scope of which varied widely. Many ILO constituents had expressed the view that ILO instruments should establish general principles in terms sufficiently flexible to accommodate different national situations and levels of development. This would facilitate broad ratification. The Committee was charged with the responsibility of developing international standards on maternity protection which would have global relevance. The Proposed Conclusions reflected a number of changes with respect to Convention No. 103 as regards the provisions concerning scope of application, leave, cash benefits, financing and employment security. The scope provision of Convention No. 103 had been problematic due to the combination of extreme detail in definition and the possibility of broad exclusions. Point 6(1) provided that the new instrument would apply to all employed women, with Point 6(2) allowing Members to exclude limited categories of workers or enterprises, after consultation with employers' and workers' organizations, if application raised special problems of a substantial nature. As regards leave, the 12 weeks established by Convention No. 103 remained unchanged, although two sub-points had been included to address the concerns of Members which supported a longer leave period. The Office had also made provision for "additional leave" in Point 8(2) in the event of illness, complications or risk of complications in connection with a worker's pregnancy or confinement, without seeking to determine the manner in which such leave should be considered. As regards cash benefits, Convention No. 103 specified that payment would be provided either out of compulsory social insurance or public funds. In contrast, the Proposed Conclusions with a view towards a Convention offered Members the choice between payments based on earnings or the payment of an appropriate flat rate.

7. The replies to the questionnaire revealed the complexity of the financing of benefits, with cash benefits and medical benefits in some countries being provided through separate systems with different funding mechanisms, or through a mix of public and private sources. Given this complexity and variety of financing arrangements, there was strong support for allowing individual countries to determine the approach most suitable to their national circumstances. A number of replies stressed that public funds were an important complementary source of benefits for women workers in need who did not qualify under social insurance, or as a form of social assistance where no social insurance scheme existed, or if other funding was not available. Although Article 4(8) of Convention No. 103 provided that employers would in no case be individually liable for the cost of maternity benefits due to women employed by them, the Office did not include this provision in the proposed text. Concerns had been expressed that it would pose an obstacle to ratification for a number of countries, where maternity benefits were financed, at least in part, by employers. Other respondents believed that individual employer liability for the cost of maternity benefits might have a negative impact on the hiring and retention of women workers.

8. Following the almost unanimous support for protection against dismissal due to pregnancy or childbirth, Point 11 had been drafted to provide a longer period of protection, although the prohibition against dismissal was no longer absolute. It did not extend to grounds unrelated to pregnancy or childbirth and its consequences or nursing. Point 12 was added to ensure that maternity did not result in discrimination in employment.

9. In concluding, the representative of the Secretary-General said that the Proposed Conclusions contained proposals allowing for progressive implementation with regard to scope, and with regard to benefits in countries with insufficiently developed economies and social security systems. The periodic review provision would encourage progressive or continuing improvements at the national level with regard to the length of leave and the rate of cash benefits.

General discussion

10. Before presenting the position of the Employer members on the Proposed Conclusions, the Employer Vice-Chairperson noted that this was the first time in the history of the ILO that the Chairperson and Vice-Chairpersons of a Conference Committee had all been women. Although she welcomed this development, she emphasized from the outset that maternity protection did not just concern women, but was a responsibility shared between men and women and between governments and employers. Employers had a responsibility to ensure that adequate protected leave was provided to the women concerned and governments had a responsibility to ensure that mother and child had adequate levels of support during the period when the mother was not working. But employers also had a right to expect not to carry undue financial and compliance costs, and governments had a right to set national policy that reflected the economic and social expectations of the wider community.

11. Although maternity protection had always been a high priority on the ILO's agenda -- the first Convention on this subject was adopted in 1919, when the Organization itself was founded -- the Maternity Protection Convention (Revised), 1952 (No. 103), had been ratified by only 37 countries, i.e. less than 20 per cent of the possible total. This low take-up rate was no surprise to the Employer members who had consistently argued against the prescriptive and inflexible nature of Conventions adopted by the ILO. Convention No. 103 clearly fell into this category. They firmly believed that any revised instrument must avoid repeating the erroneous "one-size-fits-all" approach, in favour of declarations of principle to which all three social partners could subscribe, in the light of their individual domestic realities. In sharp contrast to Convention No. 103, the Equal Remuneration Convention, 1951 (No. 100), had been ratified by 137 countries and the Discrimination (Employment and Occupation) Convention, 1958 (No. 111), by 132 countries. The non-prescriptive approach was clearly one that worked and it was the one which the Employer members advocated. For the Employer members, the discussion on maternity protection must reflect the need for a balance between the protection of a woman's safety and health, her job security during pregnancy and following the birth of the child, and the protection of employers from undue monetary, compliance and operational burdens. To get the balance wrong would not only lead to another unratifiable instrument but might also contribute to diminishing employment opportunities for women of childbearing age. Fundamental to this balance was the need to ensure that individual employers were not made liable for full direct monetary costs of individual employees. Otherwise, employers might well prefer to hire men rather than women and that would undermine women's opportunities on the labour market, leading to the Convention having an unintended impact of discrimination against women of childbearing age. A further aspect of this balance concerned the two distinct threads which ran through the Proposed Conclusions: one relating to the removal of discrimination and the other to what were essentially social security benefits. Anti-discrimination principles should apply universally to persons in employment. However, social security benefits for periods of maternity leave were often accompanied by qualifying periods which depended on length of service or contributions to insurance schemes, with exceptions relating to levels of earnings, or categories or status of employment. These two apparently contradictory threads would have to be woven together in an acceptable way if the fabric of the instruments were to be robust.

12. In concluding, the Employer Vice-Chairperson said that the ILO had clearly taken note of the difficulties encountered by countries in the ratification of Convention No. 103 and had moved away from the prescriptive provisions of many instruments of the past. She commended the Office on its efforts and said that the Proposed Conclusions clearly identified the issues which the Committee needed to address.

13. The Worker Vice-Chairperson, also commending the Office on its preparatory work, agreed with the Employer members that maternity protection was a matter of shared concerns and responsibilities and that it was necessary to strike a proper balance in this respect. However, although instruments needed to be flexible, excessive flexibility could result in instruments that set no real standard. The Committee must seek a sensible compromise in order to establish minimum standards, which provided both sufficient substance and the necessary flexibility and adaptability to the conditions in member States. Similarly, although wide ratification was an important goal, the real fruits of an instrument would be reaped only with its practical application. It was well known that wide differences existed in the practical application of texts, and maternity protection was no exception to this. However, over the past few decades, the role played by women in society had undergone substantial changes, with more and more women of childbearing age now employed outside the home. Similar changes had also occurred in working conditions, particularly in the intensity of work. Greater emphasis was now being placed on productivity and increasing demands were being placed on women workers, including physical demands likely to affect their health. For the Worker members, it was important for the instrument to cover as many working women as possible, with account being taken of their cultural, religious and national backgrounds. It was important for workers to know how long and in what ways women would be protected. Legally binding commitments should be balanced with the interests of governments, enterprises and of women themselves. There could be no deterioration in women's rights. The new instruments would have to guarantee the financial protection of workers during their maternity leave if the intrinsic value of such leave were to be maintained. This must be ensured by a legally binding framework for income replacement. Finally, the provisions would have no purpose without the provision of adequate protection against the dismissal of pregnant workers or nursing mothers. The Worker Vice-Chairperson supported the adoption of a Convention and a Recommendation, but emphasized that the Convention should contain a sufficient degree of legally binding detail, and be forward-looking enough for the next century.

14. The Government member of Croatia said that the discussions on the Proposed Conclusions should reflect the new emphasis in ILO policy on gender mainstreaming, and the promotion of gender equality. The line between protection and discrimination should be examined carefully. Regarding parental leave, reference should be made to the Workers with Family Responsibilities Convention, 1981 (No. 156). The Committee should aim for modern standards that would help both women and men reconcile their family and work obligations. She wondered whether the Proposed Conclusions provided fewer rights than those established in Convention No. 103 and asked for clarification from the Office on whether a revised Convention could reduce the rights set out in a Convention. She also pointed out that replies of the Croatian Government were not reflected correctly on page 205 of Report V(2). In reply, the representative of the Legal Adviser stated that each session of the Conference was sovereign and free to take such action as it considered appropriate. On certain points, the proposed new Convention went beyond Convention No. 103, by establishing broader coverage and more limited possibilities of exclusions. On others, however, it introduced greater flexibility, for example, with regard to compulsory leave or the financing of benefits. In two respects the Proposed Conclusions with a view to a Convention went less far than Convention No. 103: they replaced the absolute prohibition of dismissal during maternity leave by a prohibition of dismissal except on grounds unrelated to the pregnancy or childbirth and its consequences or nursing; and they no longer provided for the right to take nursing breaks, which was dealt with in the Recommendation.

15. The Government member of Australia expressed his Government's support for the new revised instruments addressing maternity protection. The new Convention should establish a framework for appropriate minimum protection which reflected the principles of non-discrimination in employment, health protection, maternity leave, and support in living standards through both medical and cash benefits. The standards should be relevant in respect of the level of protection and capable of extensive ratification. The text of the Preamble could be strengthened to reflect the objectives and principles of the proposed Convention, but the wording of any amendment would depend on the outcomes of the discussions. He asked the Office to provide clarification regarding this point.

16. The representative of the Legal Adviser responded that the Preamble did not form part of the substantive provisions of a Convention or Recommendation and could not give rise to obligations. Its purpose was to set out the context and circumstances in which the instrument had been adopted. As part of the body of international labour standards, Conventions and Recommendations formed part of the general context in which each Convention and Recommendation was adopted. While preambular paragraphs might be of general interest, they were likely to be the subject of numerous amendments, and their examination at this stage could detract from the time available for the consideration of the substantive provisions of the proposed instruments.

17. The Government member of Canada expressed support for the development of a revised Convention and Recommendation which would be effective and meaningful. The instruments should be simple, focused and capable of wide ratification and implementation. With regard to compulsory leave, it would be preferable to provide an appropriate and sufficiently generous period of maternity leave which the employee could freely arrange according to her circumstances. The Proposed Conclusions with a view to a Recommendation relating to employment protection, non-discrimination and parental leave were fully supported.

18. The Government member of Colombia stated that the Constitution of her country went even further than the Proposed Conclusions. The rights and prerogatives granted to women during pregnancy and after childbirth had to be strictly complied with and could not be renounced.

19. The Government member of China noted the importance of maternity protection at a time when more women were in the labour market and returned to work after childbirth. New instruments which took into account the cultural, social and economic circumstances of each country would gain broad support.

20. The Government member of Egypt stated that, in her country, labour law provided for the protection of women workers. International provisions had been integrated into Egyptian legislation, in acordance with traditional religious practices. The legal protection of women and children went beyond the new proposed standards. The Government member expressed a reservation in principle on the definition of "working woman" and "child".

21. The Government member of India highlighted the importance of maternity protection for working women in the organized and unorganized sectors. In India, only a very limited proportion of the labour force was covered by labour legislation providing leave, medical care and cash benefits to working women. It was not possible for India to cover working women in all types of employment under existing legislation. Social security and labour welfare measures would be extended to workers in the organized sector in a phased manner. The proposed Convention should be flexible so that governments could implement its provisions in a phased manner in different sectors of the economy. Otherwise it might not be possible to ratify the new Convention in the near future.

22. The Government member of Japan stated that, as more women were working during pregnancy and after childbirth, it was important to ensure that women's maternity was respected at the workplace and that a woman could give birth with peace of mind while retaining her employment. Law and practice concerning maternity protection varied greatly from country to country and the revised instruments needed to be realistic and flexible in accordance with divergent national situations. Convention No. 103 specified higher requirements than the national laws and regulations of member countries and thus the number of ratifications had remained low.

23. The Government member of the Libyan Arab Jamahiriya stated that women and men were equal in terms of human rights, but the relations between the sexes had been regulated by holy texts since the earliest times. As a result, women had been granted special protection and special privileges. These included, for example, the possibility of part-time work, the provision of childcare facilities and transportation for working women, maternity leave of three months and additional sick leave in case of complications. The definition of "woman" and "child" in the Proposed Conclusions was provocative and incompatible with national legislation and sacred texts. It would raise problems for Muslim countries in particular with regard to the issue of illegitimate children. The proposed definition, if accepted, could raise problems regarding ratification of the new Convention.

24. The Government member of Norway stated that, in spite of their advanced labour legislation and the high priority given to parental rights, none of the Scandinavian countries had ratified Convention No. 103. It was vital that the Committee aimed for a flexible Convention that could gain the widest possible ratification and, at the same time, provide essential rights concerning pregnancy, birth and early childhood. The time had come to start a process towards granting equal rights for both parents with regard to parental leave in early childhood. The Convention should at least facilitate the adoption of national laws and regulations which included fathers, in line with Point 25 of the Proposed Conclusions. By choosing a gender neutral title for the Convention, the Committee could signal that men as well as women had obligations and rights concerning these matters. A proposal for such a title could be "Rights concerning pregnancy, birth and early childhood".

25. The Government member of Papua New Guinea supported a flexible, facilitative, rather than a prescriptive, approach to setting standards for maternity leave. The new Convention should be rights-based to secure the dignity of women at the workplace. The new standards should accommodate differing national situations and levels of development while laying down basic rights. It should leave the mechanisms for application to national law and collective bargaining. Papua New Guinea supported the definition of "woman" under Point 5 of the Proposed Conclusions.

26. The Government member of the Philippines stressed the continuing importance his Government attached to promoting the health, safe motherhood and the economic well-being of pregnant and nursing women. The revision process should result in maternity protection instruments which were more responsive and relevant to the needs of women at work. The Government would be examining proposals for a longer period of leave and one-hour nursing breaks. These protective measures would have to be examined carefully in view of the possibility that they could lead to a reluctance to hire women. Balance would have to be achieved to ensure safety and health for women workers while keeping the added costs of the employer within tolerable limits.

27. The Government member of Slovakia stated that the legal protection of women in his country was based on harmonizing living, family and working conditions. Providing special working conditions for pregnant women and mothers enabled them to participate in work while taking into account their reproductive role and social function in bringing up children.

28. The Government member of Sudan explained the protective aspects of national legislation regarding maternity, noting in particular the prohibition of night work, the prohibition of types of work prejudicial to a woman's health, and forced overtime. Such protection was in conformity with religion and culture. The new instruments should have sufficient flexibility to respond to the specific characteristics of member States. He supported the objections raised by previous speakers concerning the definition of a "working woman". Current national discussions had focused on the possible extension of maternity leave. Such an extension would be a significant contribution for parents who wished to care for their child as long as possible. However, such prolonged leave could result in the loss of qualifications. Questions of financial security and dependence on the other partner could not be ignored. The proposal to prolong leave must be sensitively approached so as not to result in a reduced general level of protection for employees.

29. The Government member of Sweden noted that although the Scandinavian countries' maternity protection and parental leave policies had been identified as being the most advanced, not a single Nordic country had ratified Convention No. 103. The detailed implementation requirements of that instrument had been an impediment to ratification. New standards should take into account women's increased labour market participation and their continued experience of discrimination in hiring due to their reproductive function. The Government of Sweden advocated a two-part Convention, the optional second part of which could be accepted at the time of ratification or at any later date. This second part, aiming to stress gender equality and rights in working life, should focus on parental leave and benefits. The Convention should not consist only of minimum standards; it should define basic aims and provide member States with guidance for the future. The new instruments should define a framework for basic protection which member States could build upon and amplify. The instrument should emphasize the shared familial responsibilities of both parents, enabling them to combine work and family. The best way to support parents was to allow both to be economically active. The optional second part of the Convention should provide for parental leave and benefits appropriate to parents' needs. The primary aim of a parental benefit was the child's welfare, but a further aim was equality between men and women. Other ILO instruments such as the Workers with Family Responsibilities Convention, 1981 (No. 156), and its accompanying Recommendation No. 165, considered that family responsibilities were shared by both sexes. The Beijing Declaration and Platform for Action and the UN Convention on the Rights of the Child adopted the same perspective. The new instruments should highlight the participation of the father and provide guidance to countries wishing to modernize their legislation.

30. The Government member of the Syrian Arab Republic supported the Worker members' statement regarding the importance of taking into account national conditions, but examples of different applications in practice would be useful. He also shared the concern of the Government member of Croatia that the revised instruments could provide for lower standards of protection. He questioned the meaning of additional leave in the Proposed Conclusions, and suggested that it should be referred to as additional leave for sickness, with a specified maximum duration period. He further noted that the Syrian Labour Code devoted a special chapter to the employment of women. It provided for maternity leave, nursing leave, the prohibition of night work for women and the establishment of crèches for the children of women working in factories.

31. The Government member of the United Kingdom referred to women's increased participation in the labour market and the increase in the types of jobs they performed. Equality of opportunity was essential since women made a vital contribution to the economy. Maternity protection should provide essential health and safety measures for women at work. In addition, maternity protection should help close the gender gap by ensuring the right to return to work, without a reduction in status or conditions of work. Maternity protection was good for business. Employers needed to retain skilled staff in order not to incur costs for training and recruitment. The new standards would need to strike a balance. Minimum standards needed to provide genuine protection for the health and safety of the woman and the child without placing an unnecessary burden upon the employer. He emphasized the importance of formulating standards which were focused and which complemented related instruments.

32. The Government member of Zimbabwe believed the Proposed Conclusions were flexible enough to receive wide acceptance. In Zimbabwe, although there was a social security scheme, the financing of maternity benefits was being borne by employers. This had been an obstacle to ratification of Convention No. 103 which prohibited individual employer liability. The language of the Proposed Conclusions would allow his Government to reconsider its position regarding ratification of the Convention.

33. The Government member of Kenya warned that the Committee must be careful to ensure that by extending protection the new instruments would not result in increased discrimination, especially in light of high unemployment. The question of cash benefits needed to be addressed at country level and how they should be paid needed to be thoroughly discussed. Parental leave might be difficult to implement due to economic constraints and cultural factors.

34. The Government member of South Africa reflected that in spite of progress, pregnant workers were still subjected to inequality of treatment at work and were still exposed to risks such as job loss, suspension of income and deterioration of health. For many women, "maternity protection" remained an empty phrase. He stated that the revision was long overdue since the provisions of Convention No. 103 have been overtaken by recent trends in law and practice. The protection of women's health and employment rights had to be strengthened. The instrument should apply to all women. Coverage for those working in atypical employment should be considered. Discrimination should not be allowed on the basis of the nature of work or marital status. The Committee should aim to develop standards that were targeted, realistic and comprehensive. The new standards should build on the core elements of maternity protection, set the course for further development, and provide guidance on measures to ensure practical application.

35. The Government member of Venezuela, supporting the revision, observed that her country had always advocated women's causes, and that the legislation of her country went beyond the requirements of Convention No. 103.

36. The Government member of the United States also supported the revision of Convention No. 103. The Committee's work should provide flexible guidelines reflecting the reality of the rights of women in today's workplace to make choices in accordance with their individual needs. To enable wide ratification, the new instruments should be sufficiently flexible to take into account the differing national circumstances of ILO member States.

37. The Government member of Morocco supported the revision of the Maternity Protection Convention (Revised), 1952 (No. 103), to the extent that the new instruments would be flexible and would respect Muslim culture and religion.

38. The Government member of Mexico asserted that maternity protection related to the very foundation of society, the family. Women were increasingly joining the labour force while simultaneously filling an essential role within the family. The Government of Mexico supported all efforts to guarantee women's rights, while at the same time keeping in mind the need for balance. The instruments should take into account economic and social conditions in member States, so that they did not result in further discrimination.

39. The Worker Vice-Chairperson noted almost all governments had emphasized the importance of maternity protection. The great majority of governments seemed to consider it necessary to develop legally binding international labour standards. She reiterated the need to define the balance between economic and social conditions and the appropriate protection of women, children and families. Conditions of employment for women should not be worsened, but improved. Many governments had made forward-looking proposals to reconcile work and family responsibilities for men and women.

40. The Employer Vice-Chairperson noted that in order to ensure the maximum number of ratifications, the instrument must be flexible, must recognize the differences in law and practice within different jurisdictions, and must reflect realistic expectations. The Convention should focus on principles, whereas contentious issues and details should be placed in the Recommendation. She stressed that governments should not pass on the cost of cash benefits to individual employers; otherwise women's job opportunities would be likely to diminish. Balance would be paramount to avoid unnecessary financial burdens on employers and to provide adequate protections in a clear and defined manner.

41. The representative of UNICEF noted the "progress in law, an evolution in workplace practice and rising social expectations regarding the rights of working women during their childbearing years" cited in the Office report. Significant advances had been made as well in scientific knowledge of the health needs of women and their children during the first months of life. The contribution of breastfeeding to improving both maternal and child health was recognized and had become a part of national health policy for compelling medical reasons. The desire to achieve a more widely ratified, but less prescriptive Convention should not come at the expense of the rights of women and children. The health implications of revising Convention No. 103 had been raised at the 26th Session of the UN Administrative Committee on Coordination, Sub-Committee on Nutrition. It was felt that the review process might profitably be extended by one year so that Ministries of Labour could consult with Ministries of Health. Governments and the international community needed to harmonize exclusive breastfeeding for at least four, but preferably six, months with the duration of paid maternity leave. UNICEF would encourage the reinstatement in the Convention of the right to two paid half-hour breastfeeding breaks per day, a woman's absolute right to at least six weeks of postnatal leave, and the funding of benefits through social insurance or public funds, rather than by employers.

42. The representative speaking on behalf of the International Federation of Social Workers urged the Committee to ensure that the revision of Convention No. 103 would effectively address the specific requirements of pregnant and breastfeeding workers. The contribution made by women in childbearing and breastfeeding should be recognized and compensated. By shifting to the Recommendation the right to breaks for breastfeeding or the expression of breastmilk, a normative standard would result which could negatively affect the design of national legislation for years to come. Only those women workers with access to workplace breaks and facilities supportive of breastfeeding or with sufficient negotiating power with their employers would be able to combine breastfeeding with paid employment. A period of paid maternity leave was critical to enabling employed women to breastfeed. The ability of women to take leave was contingent on an accompanying payment and expanded leave eligibility criteria. The health and economic advantages of breastfeeding to women workers had been acknowledged. For employers, advantages included reduced absenteeism and a higher rate of return to work after childbirth. Society as a whole benefited from reduced health-care costs.

43. The representative speaking on behalf of the NGO Working Group on Women's Employment and Economic Development considered the principles contained in the Maternity Protection Convention, 1919 (No. 3), and the Maternity Protection Convention (Revised), 1952 (No. 103), sound. The new instruments should provide guidance which would enable countries with widely different social traditions and economic circumstances to consolidate achievements and make realistic progress. Consolidation and progress were key. Flexibility should not lessen the effectiveness of measures which enabled women to combine pregnancy and lactation with labour force participation and the demands of their jobs. While the emphasis on health protection was welcome, other needs and aspirations of workers should also be addressed, notably equality of opportunity and treatment for pregnant and nursing women. The Proposed Conclusions fell short of expectations with regard to the protection and promotion of health, including the broad issue of reproductive health, and also with regard to the funding of benefits. Individual employers should not be liable for the cost of benefits due to the women they employed. The Committee was strongly urged to find language for the Convention, which would encourage member States to identify ways and means to pool the necessary resources. She felt that three considerations might facilitate the work of the Committee: women had a right to bear children; they had a right and, increasingly, an obligation to work; and these rights and duties involved responsibilities for women, their families, enterprises and society. The new standards should protect women's health, their employment opportunities and job security. They should also promote women's contribution to the stability of families, to the welfare of enterprises and to the economy.

44. The representative of the International Council of Nurses noted that nurses had a particular interest in maternity protection, both as health workers and as women workers. Citing the provisions of the UN Convention on the Rights of the Child, she urged the Committee to provide the needed legal framework to guarantee women workers the right to breastfeed for at least six months. Maternity leave should be extended to at least 16 weeks to facilitate the social development of the child and the mother's return to optimal health. Removal of additional leave for any period elapsing between the presumed date of confinement and the actual date of confinement would result in a shorter shared time for mother and child post-delivery. Optimal conditions should be provided for job and economic security, freedom from discrimination, occupational health and safety, support of parents' child-rearing responsibilities and the right of women to choose their primary health-care provider.

45. The representative of the International Women Count Network, stressing that all mothers were working mothers, cited the economic value of women's unwaged work, which had been estimated by the UNDP to amount to US$11 trillion in 1995. The intense work of infant care, of which breastfeeding was a major part, was devalued in the Proposed Conclusions, which had shifted provisions on nursing breaks to the Recommendation. This work represented a major contribution of women to the economy and to society. Paid maternity leave should be strengthened. The scope of the instruments should include women working in the informal sector, in domestic occupations and in agriculture. Those workers needed the same protection as all other working women.

Consideration of the Proposed Conclusions
contained in Report V(2)

A. Form of the instruments

Point 1

46. The Government member of Norway submitted an amendment to insert, after the words "international standards", the following words: "related to rights concerning pregnancy, birth and early childhood". In her view, the new instruments should take into consideration parental leave. Nonetheless, the debate on this question might be usefully postponed until the question of the possible inclusion of an optional second part to the Convention relating to parental leave was decided.

47. The Employer Vice-Chairperson supported deferment of discussion on Point 1 until after the content of the possible instruments was decided. She stated that both the title and the form of the instruments should be decided only once the Committee knew the content of the new instruments. The Worker Vice-Chairperson supported the proposal to defer discussion, since the earlier proposals of the Government member of Sweden regarding parental leave merited further deliberation. The Government members of Croatia, Cyprus, the United Kingdom and the United States also supported postponing discussion on the amendment to Point 1. The consensus of the Committee was thus to defer discussion on this Point to a later time.

Point 2

48. The Employer Vice-Chairperson proposed postponing the discussion of Point 2 until the content of the new instruments was known. The Worker Vice-Chairperson questioned whether it was possible to discuss a Point for which no amendments had been submitted, as was the case here. The representative of the Legal Adviser stated that the Committee might decide to discuss this Point, without amendment, at any time. However, the Point could not be reopened to amendment. The Worker Vice-Chairperson felt that it was preferable to discuss the Points in order and suggested proceeding with the discussion of Point 2, a view supported by the Government members of Croatia and Namibia. The Government member of the United Kingdom noted that the vast majority of replies to the questionnaire from governments, employers' and workers' organizations had favoured the adoption of a Convention and a strong majority had supported the adoption of a Recommendation supplementing a revised Convention. The Government member of Cyprus considered it normal to decide at an early stage on the form of the instruments in order to know where substantive provisions would be placed. The Government members of Croatia, Cyprus, Guinea, the Libyan Arab Jamahiriya, Switzerland, the United Arab Emirates, and the United Kingdom supported adoption of the Point as drafted. The Employer Vice-Chairperson, noting that the Employer members had attempted to deal with this question in a reasonable manner, moved to put to a vote the postponement of discussion on Point 2. She submitted that it was inappropriate, if not impossible, to discuss the form of an instrument before issues of substance, which would have an impact on the form of an instrument, were clear.

49. Put to a vote, the motion to postpone discussion of Point 2 was defeated by 186,567 votes against, 109,935 in favour, with 1,449 abstentions. Point 2 was adopted without change.

Point 3

50. The Government member of Australia proposed an amendment to delete all the words after the second reference to "1952" and to replace them with the following text:

in order to recognize the diversity in economic and social development of member States and the state of the protection of maternity in national law and practice.

Point 3 as worded in the Proposed Conclusions, in particular the phrases "significant economic and social developments in member States" and "the improvements of the protection of maternity in national law and practice", could be construed to imply that the new Convention would contain higher standards of protection than those found in Convention No. 103. The new wording better reflected the element of flexibility, which member States might take into account when considering ratification. The Government members of Canada, Croatia, Denmark, France, Italy, New Zealand and Switzerland supported the amendment.

51. The Worker Vice-Chairperson opposed the proposed amendment, strongly preferring the text proposed by the Office. In light of the Governing Body's decision which had led to the revision, it was important that the new instrument take into consideration the economic and social developments and the improvements in law and practice regarding maternity protection.

52. The Employer Vice-Chairperson expressed full support for the proposed amendment, citing the need to recognize diversity in economic and social development of member States. The new Convention should take these diverse situations into consideration. The Government members of Côte d'Ivoire, Egypt, Guinea, Namibia, Spain, the United States and Zimbabwe also expressed their support.

53. The Government member of Cyprus expressed dissatisfaction with the phrase "the state of protection" because it seemed to convey that the protection was static. As a solution, she proposed a subamendment to replace the word "state" with the word "development", a proposal which was supported by the Workers' group and the Government members of Barbados, Croatia, Italy, the Netherlands, the Philippines and Spain. The Government member of Switzerland pointed out that the original French version of the amendment already had the nuance intended by the subamendment. The Government member of Australia could accept the subamendment, if it also reflected current law and practice.

54. The Employer Vice-Chairperson preferred the original version proposed by Australia. In the Employer members' view, the word "state" was appropriate because the Preamble was referring to the present situation. She nonetheless proposed a second subamendment which would apply solely to the English text. The deletion of the words "the state" would bring the English text into conformity with the French version which recognized diversity in protection and would lessen the static sense of the proposed amendment in English. The Government member of Spain noted that the Spanish translation of the amendment was quite literal, using "situación" where "state" was used in English. She opposed a subamendment which would accord the English and Spanish texts with the French translation. The Government member of Guinea pointed out that the Employer members' proposed subamendment relied on subtle linguistic questions and was therefore difficult for the French and Spanish speakers to decide. The Employer Vice-Chairperson accepted the wording of the subamendment proposed by Cyprus and it was adopted by consensus.

55. The amendment was then adopted by consensus as subamended. As adopted, it replaced the text following the second reference to the year "1952" with the following text:

in order to recognize the diversity in economic and social development of member States and the development of the protection of maternity in national law and practice.

56. The Employer members submitted an amendment to delete the words "as well as", replace them with a comma and add at the end of the sentence the words "as well as the lack of flexibility of those instruments which has discouraged ratification". This wording would emphasize the main reason for the revision of the instruments and would make clear the new approach to standard setting which moved away from prescription.

57. The Worker Vice-Chairperson requested that the Employer members withdraw their amendment in the light of the previous discussion which had reflected acceptance of diversity in developments among Members. Discussion of such an amendment could entail identifying all the other reasons which might have discouraged ratification. Furthermore, "flexibility" was a vague term.

58. The Employer Vice-Chairperson withdrew the amendment on behalf of her group.

59. The Government members of Egypt and Pakistan submitted an amendment to add the words "and the various legal systems" at the end of the Point, the purpose of which was to provide greater precision. The Worker Vice-Chairperson, while expressing support for the intention of the amendment, believed that the original text was sufficiently broad as it stood, a view which was supported by the Employer members and endorsed by the Government members of Canada and Cyprus. Following further opposition to the amendment from the Government member of Germany, speaking on behalf of the Government Members of the Committee Member States of the European Union (Austria, Belgium, Denmark, Finland, France, Germany, Greece, Ireland, Italy, Luxembourg, the Netherlands, Portugal, Spain, Sweden and the United Kingdom, hereafter referred to as "the Government Members of the Committee Member States of the European Union"), the amendment was withdrawn.

60. Point 3, as amended, was adopted.

Point 4

61. Point 4 was adopted without change.

Point 5

62. The Worker Vice-Chairperson submitted an amendment to delete the words "whether married or unmarried" and replace with "without discrimination whatsoever", and to delete the words "whether born of marriage or not" and replace with "without discrimination whatsoever". Recalling her earlier remarks about the need to take into account different ethnic, cultural and religious backgrounds, she said that the amendment sought to use wording which would be acceptable to the widest number of countries. The Employer Vice-Chairperson, while recognizing the importance of the need to avoid any kind of discrimination, expressed concerns about the impact of the amendment on the provision for exclusions under the proposed text of Point 6(2). The addition of the words "Notwithstanding the provisions of Point 5" at the beginning of Point 6(2) might establish such a linkage. The Government member of Cyprus echoed the Employer members' call for linkage with Point 6(2), as did the Government member of the United Kingdom. The Government member of Croatia, while voicing support for the amendment, requested clarification concerning who would determine the grounds for such discrimination. The Government member of Spain said that the Spanish Constitution and legislation to apply its provisions did not make any difference in the treatment of children and therefore no form of discrimination was possible. Parliament was currently preparing draft legislation for the protection of working parents. In addressing these two issues, the Worker Vice-Chairperson said that the amendment was not intended to affect in any way the exceptions which might be provided for under Point 6(2), and that the Preamble contained a general provision to the effect that account would be taken of national law and practice. Several Government members, including those of Austria, Cyprus, Finland, the Islamic Republic of Iran, Italy, the Libyan Arab Jamahiriya, Sweden, Switzerland, the United Arab Emirates and Uruguay, expressed their support for the amendment.

63. The representative of the Legal Adviser, in response to the request for clarification concerning the meaning of "without discrimination whatsoever" in the text, said that the meaning in an ILO text would be the same as that used in Convention No. 111. As regards this point of definition, she noted that the definition in itself was circuitous and therefore not necessarily indispensable.

64. The Government member of Greece also endorsed the reference to non-discriminatory policies and practices, but said that the new instrument needed to reflect changes which the family had undergone in modern society, where many economically active women were now adopting children who should also be included in the scope of the instrument. She therefore proposed a subamendment for the provision to extend to any child, "including children born in or out of marriage and adopted children". The subamendment was opposed by the Employer members, who said that the situation of children per se was not the subject of the proposed instrument, which concerned the protection of pregnant workers and nursing mothers, i.e. during the period of pregnancy, birth and recovery. A woman who gave up her child for adoption would clearly be covered under the instrument, as would the child, but the provisions should not in her view be used to include children adopted at some later age. The Worker Vice-Chairperson also opposed the proposal on the grounds that it introduced a qualification which was necessarily selective, and that the question of whether adopted children were covered or not should be left to national legislation and practice. Further opposition was expressed by the Government member of Germany and the Government member of the United Kingdom, who said that Convention No. 156 was a more appropriate instrument for considering the matter of adopted children, a view endorsed by the Government members of Australia, Canada and Papua New Guinea. The Government member of the Libyan Arab Jamahiriya reiterated that there was no distinction between adopted and non-adopted children because, under Koranic law, persons other than natural parents could look after children who were not their own, but could not adopt them. This view was echoed by the Government member of Egypt. After a lengthy debate, the Government member of Greece withdrew her subamendment.

65. Although the Employer Vice-Chairperson welcomed the clarification from the Worker members concerning the safeguarding of the provisions of Point 6(2), she pointed out that since the new instrument would apply to all employed women, there might perhaps be no need for Point 5 at all. However, the Worker members rejected the idea of its deletion, maintaining that their amendment was an important element of their objective, and that of the ILO, of promoting consensus between different groups, irrespective of national, cultural or religious backgrounds. In some cases, national law and practice did not distinguish between children, whether adopted or not. The Government member of Mexico said that the Constitution of his country provided protection to all children and prohibited any kind of discrimination.

66. In response to a request for clarification concerning the Office's intentions in drafting Point 5, the representative of the Legal Adviser said that the intention was not to change the meaning of the equivalent provision contained in Article 2 of Convention No. 103. It was not necessary to include in the new instrument a list of prohibited grounds of discrimination, since these were already contained in Convention No. 111. The provision was definitional and did not address the question of scope of the instrument.

67. In the light of the debate, the Employer Vice-Chairperson submitted a subamendment to qualify the reference to "child" by the addition of the words "she gave birth to", which she said would take account of her reservations already expressed about extending coverage to adopted children and focus the instrument on the subject in hand, namely, maternity protection. The instrument should not apply to "any child", but to a child to whom a working mother gave birth, and this linkage should be clearly expressed in the text. The Worker members continued to maintain preference for their own proposal, with the support of several Government members. After lengthy debate, the subamendment submitted by the Employer members was rejected by a vote of 151,011 in favour and 206,199 against.

68. On the understanding that the reference to "without discrimination whatsoever" would not preclude the provision for exceptions under Point 6(2), the Employer members withdrew their opposition to the amendment submitted by the Worker members and Point 5, as amended, was adopted.

Point 6

69. The Employer members submitted an amendment as follows:

Delete Points 6 to 13 and replace by the following:

New Point 6

6(1) Each Member for which this Convention is in force undertakes to declare and pursue a national policy designed to promote, by methods appropriate to national conditions and practice, maternity leave and protection for all employed women with the exception of the self-employed.

6(2) However, a Member might, after consulting the representative organizations of employers and workers concerned, exclude wholly or partly from the scope of the Convention limited categories of workers or of enterprises when its application to them would raise special problems.

6(3) A Member might after consulting the representative organizations of employers and workers exclude wholly or partly from the scope of the Convention workers who do not meet established eligibility criteria.

6(4) A Member which avails itself of the possibilities afforded in the preceding two paragraphs should, in its reports on the application of the Convention under Article 22 of the Constitution of the International Labour Organization, list the categories of workers or of enterprises thus excluded in the reasons for the exclusion and/or list the eligibility criteria that apply.

New Point 7

As an indispensable means of protecting the health of any woman and her child, the woman's entitlement to a period of maternity leave, to protection from dismissal for reasons related to the pregnancy or maternity leave, with adequate means of supporting herself and her child, is the core element of this instrument.

New Point 8

In order to protect the position of women in the labour market, an employer shall not be individually liable for the direct cost of any monetary maternity benefit to a woman employed by him or her without that employer's specific agreement.

70. The Employer Vice-Chairperson introduced the text by stating that the new Convention should focus on points of principle, whereas the supplementary Recommendation should include points of detail. The proposal to delete Points 6 to 13 of the Proposed Conclusions and to replace them with the text above in no way suggested that the substantive questions treated in Points 7 to 13 of the Proposed Conclusions would not be dealt with. They could be appropriately placed in the Recommendation, the less prescriptive instrument. In the Employer members' view, the proposed amendment captured the main elements -- scope, coverage and exclusions -- that a Convention should contain, in a manner similar to that found in the Equal Remuneration Convention, 1951 (No. 100), and the Discrimination (Employment and Occupation) Convention, 1958 (No. 111). The new Point 7 specifically identified the core element of the new Convention as being the woman's entitlement to a period of maternity leave, to protection against dismissal for reasons related to pregnancy or maternity leave and to adequate means of supporting herself and her child. Finally, new Point 8 addressed the question of individual employer liability. The Employer members clearly wished to cover the issues in the proposed text; however, in the interest of wide ratification, the Convention should be limited to points of principle. National law and practice would then determine the best means of implementing these principles. Detailed guidance would be provided in the Recommendation.

71. The Worker Vice-Chairperson declared that under no circumstances could the Worker members accept such an amendment. The deletion of major portions of the Proposed Conclusions would change the whole intent of the draft Convention. The Proposed Conclusions had been drafted according to the replies to the questionnaire. Therefore, discussion should proceed on the basis of that text. The Government member of Cyprus stated that the proposed amendment would change the nature of the instrument from a Convention which provided minimum standards regarding specific aspects of maternity protection, such as the right to leave and protection from dismissal, to a promotional instrument, such as Conventions Nos. 100 and 111. A move to such general principles would be a regression. Speaking on behalf of the Government Members of the Committee Member States of the European Union, the Government member of Germany opposed the amendment on the same grounds. The Government member of Greece noted that the proposal left fundamental rights of women unprotected. The Government members of Australia, Canada, Croatia, New Zealand, Switzerland and the United States opposed the amendment, noting that the degree of flexibility introduced was excessive. The Employer members subsequently withdrew the amendment.

Point 6(1)

72. The Worker Vice-Chairperson introduced an amendment to delete the words "employed women" and replace them with "women at work". In developing countries, and even in many industrialized countries, many women worked in the informal sector. The term "women at work" was broader and more comprehensive than "employed women" and would ensure that women working in the informal sector would be covered by the Convention. The Government members of Croatia, Guinea, Italy and Sweden expressed support for the amendment.

73. The Employer Vice-Chairperson could not support the proposed amendment because it was too broad. The term "women at work" would include women in unpaid employment and in the voluntary sector as well as the self-employed. The obligation on the employer to provide leave and not to discriminate against women in employment was the important point. In the Employer members' view, an employment relationship had to exist in order for these two obligations to apply. The adoption of such an amendment would result in an unratifiable Convention. The Government members of Cyprus and India also opposed the amendment because "women at work" could mean the self-employed, who should not come within the ambit of the Convention.

74. The Government member of the United Kingdom did not support the amendment. He requested clarification from the Office of the term "employed women". He wanted to know whether it meant women employed with a contract of employment that was written or implied or whether the meaning was wider than that and could include the self-employed.

75. The representative of the Secretary-General stated that the term referred to those who had a contractual or legal relationship of employment. National legislation might define that relationship. The representative of the Legal Adviser added that the word "employed" was used in many ILO Conventions to refer to employees, without the term being defined. Some Conventions referred to the term "employed persons" which covered workers with a contract of employment whether expressed or implied. The term was not intended to cover self-employed persons. The intention of the Office was that the term "employed woman" would refer to women workers who had a contract of employment, whether expressed or implied.

76. The Worker Vice-Chairperson proposed to clarify the meaning of their amendment by reference to part of the definition of the term "homeworker" used in the Home Work Convention, 1996 (No. 177). More specifically their intention was to cover "women at work" unless they had "the degree of autonomy and of economic independence necessary to be considered [independent workers] under national laws, regulations or court decisions". The Worker members did not intend that independent workers be covered.

77. The Employer Vice-Chairperson preferred to retain Point 6(1) of the Proposed Conclusions as it stood, rather than including a more complicated definition as in the Home Work Convention, 1996 (No. 177).

78. The Government member of Cyprus, having chaired the Committee on Home Work, was familiar with the definition contained in that Convention. She noted that the discussion had been very difficult and the definition had been drawn up to apply to a specific grey area. It was not a definition that should be applied here. She urged the Committee to keep the text as it stood.

79. The Government member of Guinea proposed two possible solutions to ensure that the instrument would be interpreted properly: either the text of the Proposed Conclusions should be retained, since it implied the existence of a contract of employment, or the term "women at work" should be adopted, specifying that independent workers were excluded. He preferred the former solution. The Government members of China, Colombia, Norway, Spain and Sweden also favoured retaining the Office text.

80. The Worker Vice-Chairperson suggested that a compromise could perhaps be found if the term "employed women" included homeworkers and dependent contract workers, since they accounted for a large majority of women workers in developing countries.

81. The representative of the Legal Adviser noted that in a number of Conventions the term "employed workers" was defined as "persons habitually employed either for wages or for salaries". Whether a worker in a situation of dependency was considered to be in an employment relationship was a matter for national law and practice. That issue was part of the discussions on contract labour in the preceding two sessions of the International Labour Conference, on which no conclusions were arrived at.

82. The Employer Vice-Chairperson recalled the difficulties of the discussion on contract labour, an issue which the Governing Body had decided to look into more closely, subsequent to further work by the Office to determine whether there was indeed a need to cover a third category of workers. She urged the Committee to retain the term "employed women". If in the year 2002, when the Governing Body would review the question of a "third category" of workers, and it might be determined that a third category of workers needed to be covered, then a different term could be adopted.

83. The Worker Vice-Chairperson withdrew the amendment due to lack of support.

84. The Employer Vice-Chairperson announced that, in light of the Office's clarification, the Employer members would withdraw their amendment to add the words "with the exception of the self-employed" at the end of the paragraph.

85. Point 6(1) was adopted without change.

Point 6(2)

86. The Government member of Croatia introduced an amendment to delete paragraphs (2) and (3) of Point 6. In her view, the Convention should apply to all employed women. The definition of "employed women" was clear and there was no need for any further limitations.

87. The Employer Vice-Chairperson was unable to support the amendment. In her view the two paragraphs were necessary to provide individual Members with the ability to determine when, in specific cases and on the basis of limited categories, certain workers or enterprises could be excluded. She cautioned that if such an amendment were accepted, ratification of the instrument would be almost impossible.

88. The Worker Vice-Chairperson saw merit in reducing the possibilities for exceptions, but could not support the amendment.

89. After a number of Governments indicated their opposition, the amendment was withdrawn.

90. The Worker Vice-Chairperson introduced an amendment to delete Point 6(2) and replace it with the following text:

However, a Member might, at the time of ratification and after consultation and agreement with the representative organizations of employers and workers concerned, exclude wholly or partly from the scope of the Convention limited categories of work when its application would raise unique problems of a substantial nature, and provided the health of the woman and child is not at risk. The reason for such exclusion shall not be on any prohibited grounds of discrimination.

This amendment attempted to reduce the possibility of broad exclusions, which otherwise might even extend to pregnant workers. The Worker members thought that not only consultation, but also the agreement of representative organizations of employers and workers was important in determining exclusions. These should be permitted for limited categories of work, rather than of enterprises. The problems of a substantial nature which gave rise to such exclusions should be unique, rather than special. Moreover, a non-discrimination element had been added to forbid exclusion on prohibited grounds of discrimination. While the principle of limited exclusions was acceptable, these must not be made on a discriminatory basis.

91. The Employer Vice-Chairperson requested clarification from the Office about whether eligibility requirements, which were an important element of virtually all social security legislation, would enter into questions of limitation under Point 6(2). The requirement for agreement with the workers' and employers' organizations could limit governments' ability to determine qualifying periods of service and other eligibility criteria. Member States should have the right to make such decisions after consultation with the social partners. She wondered whether "categories of workers" could apply to casual workers, temporary workers, or those who did not meet eligibility criteria, such as time in service or a minimum contributory period to an insurance scheme, for example.

92. A representative of the Secretary-General noted that Point 6(2) addressed exclusions from the scope of application and not qualifying conditions. The emphasis in the phrase "limited categories of workers" was the word "categories", which could cover temporary, casual or part-time workers. Women who did not meet eligibility requirements for benefits could not be considered a category of workers in the sense of that provision. A woman who had only worked for three months and did not meet the eligibility requirement of six months of time-in-service, for instance, came within the scope of application, even though she did not meet the eligibility requirements for entitlement to benefits.

93. The Employer Vice-Chairperson opposed the amendment. She found the requirement to make the exclusions only at the time of ratification to be too limited. The "agreement" of the social partners was not appropriate wording. Members should have the right to decide on exclusions after consultation with the social partners. Otherwise, the withholding of consent would be sufficient to block any exclusions from being made. The word "unique" also posed a problem since it implied something out of the ordinary. The introduction of the element of the health of the mother and child somewhat changed the focus of the provision, which concerned the exclusion of categories of workers, not of individuals. The last sentence was not required in light of the previous discussion on Point 5. Also, if the Worker members' intention was to preclude exclusions based on family status or pregnancy, the current wording was in contradiction with that aim. Language would have to be added to state that groups of pregnant women could not be excluded. The Worker Vice-Chairperson proposed as a subamendment that the following additional wording be added to the end of the sentence: "it being understood that pregnancy itself is not a prohibited ground of discrimination for the purposes of this Convention".

94. The Government member of Cyprus observed that this Point introduced some flexibility for governments to make exclusions, but cautioned that these exclusions should not be too wide; otherwise it would defeat the purpose of the Convention. Her Government was in favour of consultation and dialogue, but the requirement of "agreement" would be too difficult. The reference to discrimination complicated the text. With respect to Point 6(2), her Government preferred the Office text.

95. The Government member of Guinea stated that in his country through the functioning of the national consultative committee, "consulting with representative organizations of employers and workers" implied that agreement was always reached between the parties. Thus, the wording "consultation and agreement" seemed repetitive and should be omitted. He did not believe that the parties would conduct themselves in such bad faith as to wish harm to the health of the woman and child. Accordingly, the words "and provided that the health of the woman and child is not at risk" should be omitted. Without these two omissions, his country could not support the amendment.

96. The Worker Vice-Chairperson suggested that the word "agreement" could be replaced by the word "negotiation". However, there still seemed to be several elements at issue, and she was willing to address them one by one. She was concerned that "limited categories of worker" could include part-time workers, but understood from the Government interventions that they believed that some manner of limiting scope was necessary. In light of this, she agreed to withdraw the word "agreement".

97. Having listened to the concerns expressed by the members of the Committee, the Worker members sought to remove the problematic aspects by introducing a subamendment which resulted in the following text:

However, a Member might, in consultation with the representative organizations of employers and workers concerned, exclude wholly or partly from the scope of the Convention limited categories of workers or of enterprises when its application to them would raise special problems of a substantial nature.

98. The Employer Vice-Chairperson asked the Office to clarify the difference between the phrases "after consulting" and "in consultation with". The phrase "in consultation with" seemed acceptable when it referred to a process, but in this context it referred to decision-making. The question was whether governments would retain the right to reach an independent decision.

99. The representative of the Legal Adviser stated that, whichever term was chosen, consultations had to be carried out in good faith. The difference in terminology related to the extent or degree of discretion given to governments. There appeared to be somewhat less discretion implicit in the phrase "in consultation with". In both cases, however, the final decision rested with the government, since the wording of the text was "A Member might ... exclude".

100. As there was not sufficient support for the amendment, it was withdrawn.

101. The Government member of Australia submitted an amendment to insert after the words "However, a Member might" the following text: "at the time of ratification and at any time thereafter". He noted that member States might be reluctant to ratify an instrument in which a list of exclusions could not be reviewed periodically in accordance with changing circumstances, or they might delay ratification until a comprehensive list could be established. Similar views were expressed by the Government member of New Zealand. The Employer Vice-Chairperson supported the amendment as it addressed an issue which was also the subject of a later amendment of the Employer members. The provision would enhance the flexibility of the instrument and would not compromise the provision made for consulting employers' and workers' organizations. The amendment was opposed by the Worker Vice-Chairperson, who said that the Office text reflected the wording employed in other Conventions and that the issue was the improvement of maternity protection. The Government member of Cyprus said that the amendment changed the philosophy of the provision by extending the potential scope of exclusion, which would have social policy implications. Following further opposition from the Government Members of the Committee Member States of the European Union, the amendment was not carried.

102. The Government members of Australia, Canada and New Zealand submitted an amendment to delete after the words "from the scope of the Convention" the word "limited", and to insert after the word "enterprises" the words "determined in accordance with national law and practice". In presenting the proposal, the Government member of Canada said that the word "limited" was redundant, while the second part of the proposal was designed to ensure that Members were given sufficient flexibility in cases involving special problems. However, he emphasized that the intention was not to open up a wide gate to possible exclusions. The Employer Vice-Chairperson supported the amendment, which she said removed a redundancy in the Office text tantamount to a triplication of barriers. The amendment was opposed by the Worker Vice-Chairperson, who said that it ran counter to the intention of the mandate of the Committee, which was to seek ways to improve maternity protection. In particular, she was strongly against the deletion of the word "limited", which would restrict the scope of the instrument, and allow for the possible exclusion of workers in entire industries or complete categories of workers, such as homeworkers or part-time workers. The Employer Vice-Chairperson said that the deletion of "limited" would not prejudice the requirement of making exceptions subject to the existence of "special problems of a substantial nature", an argument also voiced by the Government member of Canada. Following opposition from the Government members of the Netherlands, Poland and Spain, the Government member of Canada proposed a subamendment to retain only the second part of the original amendment, the intention of which was to take account of local circumstances which might give rise to special problems of application. The subamendment was opposed by the Worker members on the grounds that it was self-evident that account would be taken of national law and practice. The Employer Vice-Chairperson said that although she agreed that this was indeed the case, the inclusion of such words was in no way superfluous and that it was necessary to make the point to ensure that matters were not determined by outside groups. The Worker Vice-Chairperson stressed that maternity protection was a necessity and not a luxury and that it was essential to avoid provisions that opened the way to broad exclusions. The Government member of the United Kingdom also opposed the subamendment, on the grounds that it was adequately addressed by the provision contained in Point 6(3) and the reporting procedures under article 22 of the Constitution. Following a lack of support from Government members, the amendment, as subamended, was withdrawn.

103. The Employer Vice-Chairperson submitted an amendment to delete the words "of a substantial nature", which raised the question of who would determine such a criterion and would compromise the flexibility required for the recognition of special circumstances. The Worker Vice-Chairperson said that it was for Members to decide on the interpretation of the words, which she believed should remain in the text. Following a lack of support from the Government members, the amendment was rejected.

New paragraph after Point 6(2)

104. The Employer Vice-Chairperson submitted an amendment to add a new paragraph after Point 6(2) to read as follows:

A Member might, after consulting the representative organizations of employers and workers concerned, exclude wholly or partly from the scope of the Convention workers who do not meet established eligibility criteria.

She said the intention of the proposal was to enable jurisdictions which prescribed a certain period of employment before entitlement to leave, or which placed a cap on earnings before social security type maternity benefits were provided, to be able to meet the requirements for ratification. Not all countries had European-style social security systems and it was important to avoid establishing a narrow perspective in the instrument. She added that the amendment was based on the Employer members foreseeing the possibility of the opinion given by the Office that eligibility criteria did not belong under Point 6(2), which permitted the exclusion of limited categories of workers. The Worker Vice-Chairperson opposed the amendment on the grounds that the text already contained a large measure of flexibility, and that the inclusion of such vaguely defined terms as "eligibility criteria" would compromise the provision of basic maternity protection. The provision established in Point 6(2) left open the possibility for any Member, after consulting the representative organizations of employers and workers, to make certain exclusions from coverage, and there was no need to go any further. The Government member of New Zealand supported the amendment, without which his Government would not be able to ratify the instrument. Similar views were expressed by the Government member of Australia, who said that maternity leave in his country was subject to an eligibility period of 12 months and that cash benefits were governed by a means test. The Government member of Kenya opposed the amendment, since it provided details that were unnecessary in the light of Point 6(2). The Government member of Cyprus, noting the provision of eligibility criteria in some jurisdictions, said that this matter was partially addressed by Point 9(4) as regards cash benefits. However, as regards leave, the effect of the amendment would be to exclude from such entitlement women who were unable to satisfy eligibility criteria under social security schemes. This would be unacceptable. The amendment was also opposed by the Government members of Poland and Spain, who said that there should be no further measures to extend exclusions. Following further opposition from Government members, the amendment was rejected.

105. Point 6(2) was adopted as amended.

Point 6(3)

106. In the light of the discussions, the Employer members withdrew their amendment to replace the words "preceding paragraph" with the words "two preceding paragraphs", replace the words "its first report" with the words "its reports", add after "exclusion" the words "and/or list the eligibility criteria that apply" and to delete the last sentence.

107. An amendment submitted by the Worker members to delete the words "workers or of enterprises" and replace with "work" was withdrawn.

108. In the light of the debate, the Government member of Australia withdrew his amendment to insert after "the Member should" the following text: "list any changes in the categories of workers or of enterprises excluded and the reasons for these changes, and".

109. Earlier discussion on Point 5 had resulted in agreement to establish linkage with Point 6(2) by adding the words "Notwithstanding the provisions of Point 5" at the beginning of Point 6(2).

110. Point 6(3) was adopted without change.

111. Point 6 was adopted as amended.

New Point after Point 6

112. The Government member of Croatia submitted an amendment to insert before the heading entitled "Leave", a new heading entitled "Health Protection", comprising two new Points as follows:

7(l) The employment of a woman on work defined by the competent authority as prejudicial to her health or that of her child shall be prohibited during pregnancy and, on the basis of a medical certificate, for as long after the childbirth as the woman is nursing her child.

7(2) Where the woman's work is the subject of a prohibition of employment during pregnancy and nursing, measures shall be taken, appropriate to national conditions, for the woman to be transferred to another kind of work or, if the transfer is not feasible, the woman shall be entitled to leave, without loss of wages.

The Employer Vice-Chairperson said that Point 22 of the Proposed Conclusions already addressed the subject of health protection and that in any case a Convention was not the proper place for such provisions. Furthermore, she strongly opposed the substance of the amendment as being so open-ended that its adoption might mean that employers could not afford to employ such workers at all. The Worker Vice-Chairperson said that the proposal had its merits, but that she would like to hear the views of the Government members. The Government members of Bulgaria and Italy supported the amendment. The Government members of France and Spain opposed the amendment since it would impose a prohibition on employment.

113. The Government member of Australia considered that the Committee had reached a point where a critical choice must be made between two possible models of an international standard. The first would be an instrument in which standards were established with regard to maternity protection in developed countries. The principal risk of such an approach would be the creation of an instrument relevant to a limited number of member States, a number of whom would in any case be unable to ratify the Convention due to its prescriptive detail. Less developed countries could not achieve such standards in the short or even medium term. Indeed, the standards might be so high as to discourage those members from further action in the area of maternity protection. Some improvement might be made with regard to women who already had protection, but the vast majority of women working without protection would be abandoned. The alternative to such an approach would be a more facilitative instrument which established minimum essential protection, but which left to the Recommendation the establishment of desirable higher standards. The Government of Australia supported the establishment of minimum essential protection. While agreeing with the thrust of the amendment under consideration, it could not support it for inclusion in the Convention.

114. The Government members of Cyprus, Poland and the United Kingdom agreed that the substance of the amendment would be more appropriately placed in the Recommendation.

115. The Worker Vice-Chairperson strongly urged inclusion of a provision on health protection in the Convention. Recognizing the problems raised by previous speakers, she proposed a subamendment, as follows: "No pregnant or nursing woman should be obliged to carry out tasks considered by the competent authority as dangerous to her health". Such wording followed the spirit of the European Union Council Directive 92/85/EEC on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding. It was flexible, in that it permitted the competent authority at the national level to determine which tasks were dangerous. Further details could be left to the Recommendation. The Government member of Croatia could accept such a subamendment if the words "carry out tasks" were replaced by "perform work" and the phrase "or that of her child" were added at the end.

116. The Employer Vice-Chairperson opposed the proposal, arguing that such wording was too open-ended. It implied that the competent authority would be required to rule on every type of work that could or could not be performed. In fact, the text of the EU Directive was not as broad as had been explained, since it referred to specific defined risks, such as ionizing radiation. A further negative aspect of the subamendment was that the consequences were unclear for the woman as regards the possible right to transfer or to leave.

117. The Government member of Cyprus, whilst still maintaining her previous position, proposed that the word "considered" be replaced by "defined".

118. The amendment as subamended thus read as follows:

No pregnant or nursing woman should be obliged to perform work defined by the competent authority as dangerous to her health and to that of her child.

It was defeated by a vote of 232,388 in favour and 236,652 opposed, with 8,528 abstentions.

Point 7

Point 7(1)

119. The Worker Vice-Chairperson introduced an amendment to add, after "medical certificate" the words "where this is feasible"; to add after "be entitled to a" the word "minimum"; and to replace "12" by "14". She explained that "where this is feasible" should be added to take into account a situation common to countries in several regions in which medical services were not always readily available.

120. The Employer Vice-Chairperson found the wording "where this is feasible" to be too broad. Employers needed to receive some form of certification regarding the expected date of confinement. The Employer members would propose an amendment which had a similar thrust to that now under consideration. However, they could not agree in principle with raising the minimum standard for leave from 12 to 14 weeks, as it would create an obstacle to ratification for many member States.

121. The Government member of Croatia supported the Worker members' proposal and suggested that the words "part of which shall, at the woman's request, be provided before the woman's presumed date of confinement" be added at the end. The Employer Vice-Chairperson objected since such wording had been submitted previously as an amendment and had subsequently been withdrawn for lack of support. This objection was shared by the Government members of Cyprus and the United Kingdom.

122. Regarding the question of a medical certificate, the Government members of Egypt and India could accept the wording "where it is feasible". The Government member of India stated that presentation of a medical certificate should not be a requirement for maternity protection. Protection should be provided simply because the woman was pregnant and her employer was aware of it. The Government member of Cyprus stated that the wording "where feasible" could prove problematic for governments. Some form of certification would be necessary. This view was echoed by the Government members of Australia, Belgium, Canada, Ethiopia, Japan, Luxembourg, New Zealand, Papua New Guinea and the United States. The Government members of Bahrain, Barbados, Colombia, the Libyan Arab Jamahiriya, Mexico, Oman, Qatar, Turkey, the United Arab Emirates and Venezuela preferred the establishment of a medical certificate.

123. The Government member of the Philippines sought clarification on the scientific and medical basis for setting the leave period.

124. The representative of the World Health Organization stated that there was no doubt that adequate rest and recuperation were needed following childbirth. Returning to work too early could result in acute health problems. Also, the post-partum period was essential for establishing exclusive breastfeeding, which was an essential contribution to the health of the child. Safe motherhood was a right for all women.

125. With regard to the period of leave, the Government members of Australia, Bahrain, Barbados, Colombia, Ethiopia, Guatemala, India, Kenya, the Libyan Arab Jamahiriya, Mexico, Namibia, Oman, Papua New Guinea, Qatar, Tunisia, Turkey, the United Arab Emirates and Zimbabwe preferred 12 weeks of leave. The Government members of Greece and Italy preferred 14 weeks of leave. The Government member of Greece said that the Committee should seek to set a higher standard with regard to leave in order to improve working conditions.

126. The Worker Vice-Chairperson did not insist on the inclusion of the words "where it is feasible". It was evident from the discussion that the Worker members' concern that a medical certificate should not be a condition of leave had been recognized. Nor was the word "minimum" necessary. However, the Worker members felt strongly that the duration of leave should be raised to at least 14 weeks. The Maternity Protection Convention, 1919 (No. 3), had already provided for six weeks before and six weeks after the birth, in effect providing 12 weeks total. The current revision should result in an improvement.

127. The Committee voted on the following text:

A woman to whom the Convention applies should, on production of a medical certificate stating the presumed date of her confinement, be entitled to a period of maternity leave of not less than 14 weeks, part of which shall, at the woman's request be provided before the presumed date of confinement.

The amendment was defeated by a vote of 211,068 in favour and 277,160 opposed, with 6,396 abstentions.

128. The Employer Vice-Chairperson introduced an amendment which proposed deleting the words "a medical certificate" and replacing them by the terms "appropriate certification as determined by national law and practice." This amendment was supported by the Government Members of the Committee Member States of the European Union, and the Government members of Australia, Canada, Japan, New Zealand and the United States. The Worker Vice-Chairperson introduced a subamendment to retain the term "a medical certificate" and to add the word "or" just before the Employer members' proposed text. The subamended proposal thus read "a medical certificate or appropriate certification as determined by national law and practice". The wording retained the idea of a medical certificate, but allowed other forms of certification where a medical certificate was not possible. The Employer Vice-Chairperson rejected the subamendment, considering the language more restrictive. The Government members of Australia, Croatia and Senegal supported the Worker members' subamendment. The Government members of Cyprus and the United Kingdom could accept either version of the amendment. After hearing the interventions of the Committee members, the Employer Vice-Chairperson accepted the Worker members' proposal, which was subsequently adopted by the Committee.

129. Point 7(1) was adopted as amended.

Points 7(2) and 7(3)

130. The Government members of Indonesia and Spain and the Employer members submitted separate amendments to delete Points 7(2) and 7(3). The Government member of Indonesia explained that the minimum standard was established in Point 7(1) and that there would be no possibility for member States to lower that standard. In light of this, Points 7(2) and 7(3) were unnecessary. The Government member of Spain saw no practical use for Points 7(2) and 7(3). The requirement of a declaration of the leave period provided and of further declarations each time the leave period was changed, in addition to the reports already required under article 19 of the ILO Constitution, would result in a large number of reports. If a Member ratified a Convention, its national laws must at least meet the standard set therein and the ratification should stipulate the duration of the period of leave, which in Spain was 16 weeks. The Employer Vice-Chairperson objected as well to the underlying expectation that the period of leave should be continually extended. This, along with the burdensome reporting requirements, would discourage member States from ratifying the Convention. The Government members of Australia, Colombia, Ethiopia, France, Mexico, New Zealand and the United States supported the amendments.

131. The Worker Vice-Chairperson pointed out that the prior discussion had shown that the time was not yet right for providing for 14 weeks of leave in the Convention. The 12-week minimum had been retained. In light of this, it was necessary to retain Points 7(2) and 7(3) of the Proposed Conclusions, which were promotional in character. She opposed the amendments. The Government members of Cyprus and the Philippines supported the Worker members' desire to retain the two Points. The Government member of Cyprus added that Points 7(2) and 7(3) sent a signal that efforts should be made to increase the leave period beyond the 12-week minimum. She drew the attention of the Committee to Point 13 and said that, if Points 7(2) and 7(3) were to be deleted, Point 13 should nonetheless be retained.

132. The Government member of France agreed that the periodic review under Point 13 would ensure that account were taken of the promotional aspect of the instrument. The Government member of Australia stated that the promotional aspect would be more appropriately included in the Recommendation. The Worker Vice-Chairperson said that although promotional provisions could be put in a Recommendation, it was precisely their incorporation into a Convention that would make it an innovative instrument. Furthermore, she said that there were differences between Points 7(2) and 7(3) and Point 13 as regards their promotional character. Following further opposition to the amendments from the Government members of Croatia, Guatemala, South Africa and Venezuela, the amendments were withdrawn by their sponsors.

133. Point 7(2) and Point 7(3) were adopted without change.

134. Point 7 was adopted as amended.

Point 8

Point 8(1)

135. The Employer Vice-Chairperson submitted an amendment to delete Point 8(l), which would require national legislation to establish a period of compulsory leave and raise problems concerning the payment of such periods and the choices available to women. The Worker Vice-Chairperson, opposing the amendment, said that the instrument was addressing the needs of the majority of women in the world, not those of the privileged few, and that the work of many women involved considerable physical effort, from which some protection could be provided by a period of compulsory leave. The Government member of Canada recognized that there were situations in which women might not have the power to assert the right to voluntary leave, but said that his country would have difficulties in ratifying an instrument with compulsory leave requirements which would conflict with national legislation regarding human rights. Similarly, the Government member of Australia said that, although it was not his intention to seek the deletion of compulsory leave from the text, the provision would pose an obstacle to ratification for certain countries, including his own. He considered that the provision should not apply for those countries that provided sufficient protection to allow a woman to choose, without coercion, whether to work or not during a period where she had an entitlement to maternity leave. Similar views were expressed by the Government member of Sweden. The Government member of Croatia opposed the amendment, as did the Government member of Guatemala, who said that compulsory leave was essential to the health protection of mother and child, although many working women did not realize its importance and were forced to give up their leave because of financial necessity. The Government members of China, France, Italy, the Netherlands and Venezuela also opposed the amendment on similar grounds. The Government member of the United Kingdom said that the subject under discussion was a good example of the balance which had to be reflected in the instrument. He supported the principle of compulsory leave, since pregnant women and nursing mothers needed peace of mind during the difficult period of pregnancy and confinement, but said that the duration of such leave was something which should not be confused with that principle. The Government member of Cyprus expressed similar views and noted the concept of maternity protection was not always well established in many societies, and therefore needed to be promoted. In the light of the discussion, the Employer members withdrew their amendment.

136. An amendment submitted by the Employer members to delete the first mention of the word "should" and replace it with the word "might" and to move the amended Point to the Recommendation was subamended by the sponsors, in light of the earlier discussion, to retain only the first part referring to the word "should". The prescriptive nature of the word "should" would make it impossible for some countries, including those with some of the highest standards of maternity protection, to ratify the Convention. The Worker members opposed the amendment, re-emphasizing that the provisions of the instrument were intended to provide protection for the majority of women, rather than the privileged few. The Government member of Brazil supported the amendment, as did the Government member of Botswana, who said that the word "might" left the door open to the possible inclusion of "should". The Government member of Colombia said that the legislation of her country established a period of compulsory leave and that she opposed the amendment. The Government member of Spain said that the Office text already provided sufficient flexibility, a view endorsed by several other Government members. Following opposition from the Worker members, the Employer Vice-Chairperson drew the Committee's attention to the fact that the word "should" in the Office text would become "shall" in the Convention and requested a formal vote.

137. The amendment, as subamended, was rejected by a vote of 44,967 in favour, 67,080 against, with 2,600 abstentions.

138. An amendment was submitted by the Government member of the Netherlands to delete the words "of compulsory leave, the duration and distribution of which" and replace by "in which the employer is prohibited from allowing the woman to work. The duration and distribution of this period". Following opposition from the Employer members and a lack of support from Government members, the amendment was withdrawn.

139. An amendment was submitted by the Government members of Greece and Italy to insert after the words "a period of compulsory leave" the words "before and after confinement". In opposing the amendment, the Employer Vice-Chairperson said that countries which ratified the instrument should have the ability to determine the matter themselves. The Worker Vice-Chairperson said that in light of the earlier debate she would like to hear the views of the Government members. The Government member of Croatia supported the amendment, as did the Government member of Austria, who said that it reflected her national legislation. The Government member of Cyprus said that, although this was also the case in her country, she preferred the Office text which was more flexible. The Government member of Guatemala said that it should be up to the woman worker herself to decide the distribution of leave between the pre- and postnatal periods. The Government of Mexico expressed a preference for the Office text, as did the Government members of Botswana, the Philippines and the United States. The Government member of Poland proposed a subamendment to place the words "before and after confinement" after the words "distribution of which", which was rejected by the Employer members. Following a statement by the Worker Vice-Chairperson that she would also be presenting an amendment on the same Point, the subamendment and the amendment were withdrawn.

140. The Worker Vice-Chairperson submitted an amendment to add after "of the health of mother and" the word "/or" and to add after "child." the sentence "In any case, the period of compulsory leave after confinement should not be less than six weeks." The addition of the word "/or" was intended to ensure that women were given protection even if the child died, while the importance of leave after confinement had already been emphasized in earlier discussions. Furthermore, the proposal did not involve any extension of the period of leave, but simply sought to allow proper recovery from pregnancy. The Employer members opposed the amendment. The word "and" was better because determining the duration and distribution of compulsory leave would be based upon the health of the mother and child as a unit, while the new sentence would restrict the flexibility of States to determine what was appropriate in their national context. She referred to page 50 of Report V(2) where a large majority of replies stated that the duration and distribution of compulsory leave should be matters left to individual countries. The Government member of Cyprus opposed the amendment since it would, by imposing a prescribed period, limit what could be decided in the consultations with the social partners. The Government member of Poland said that six weeks was a minimum level for postnatal leave, and that full recovery required eight weeks. The Government member of Norway said the provision would be an obstacle to ratification for all the Nordic countries and the Government members of Canada, Ireland and New Zealand said that they would encounter similar difficulties. Following further opposition from the Government members of China, Papua New Guinea and Venezuela, the Worker members proposed a subamendment to retain only the first part of their original amendment concerning the addition of the word "/or". The Government member of Japan asked the Office to confirm that the duration and distribution of compulsory leave as for maternity leave should be determined by each country for medical reasons of maternity protection. The representative of the Legal Adviser explained that Point 8(1) of the Office text was sufficiently flexible to allow a Member to determine the duration of compulsory leave with account being taken of medical reasons, etc. The Employer members opposed the subamendment on the grounds that the Office text established a natural linkage between mother and child. Put to a vote, the amendment, as subamended, was adopted by 67,080 votes in favour, 44,447 against, with 1,560 abstentions.

141. Point 8(1) was adopted as amended.

Point 8(2)

142. The Employer Vice-Chairperson introduced an amendment to delete Point 8(2). Additional leave should not be confused with maternity leave. Many responses to the Office questionnaire had specified that an absence from work due to illness, complications or risk of complications should be treated as sick leave or that it was so considered in their national legislation. A few replies to the Office questionnaire suggested that such leave be treated as additional maternity leave. The financial implications should not be overlooked. Sick leave and maternity leave were treated differently in an employment situation. With regard to sick leave, it was usual to involve some form of direct employer responsibility. In addition, this special form of sick leave might be considered a discriminatory benefit, since it would not be available to all other employees who became sick.

143. The Government members of Australia, Canada and the United States observed that similar reasoning had led them to propose deletion as well. The interaction of sick leave and maternity leave was problematic. Such a provision might be better placed in the Recommendation. The Government member of Switzerland stated that it was well known that risks could arise during pregnancy and childbirth, and that protection should be provided. In Switzerland this would, however, be considered as sick leave. She urged, therefore, that the matter not be included in the Convention.

144. The Worker Vice-Chairperson explained that Point 8(2) referred only to cases of illness, complications or risk of complications arising from pregnancy and confinement, not to any other type of illness which might occur. She sought Office clarification as to whether her interpretation was correct.

145. The Government member of Guatemala reminded the Committee that this was a question of human rights. Many mothers had experienced illness, complications and risks of complications that required medical care. Such situations had to be covered, whether they arose during pregnancy or following confinement. The question here did not concern common illness, which was understood to be covered by sick leave, but rather illness associated with pregnancy and childbirth. It was essential that such leave be included within maternity protection. She was joined by the Government members of France, the United Kingdom and Venezuela in supporting the Office text.

146. The Government member of Cyprus also opposed deletion of Point 8(2), because it was important for women to have this additional period of leave in the event of complications. The Office text did not refer to that additional leave as either maternity leave or sick leave. Additional leave could be of either type. She suggested that the Office text might have been clearer if it had used the word "period". If her interpretation of the Office text was correct, she would support it.

147. The Government member of Senegal wished for clarification from the Office with respect to the provisions in the current Convention.

148. The representative of the Legal Adviser explained that Point 8(2) of the proposed Office text referred to a narrow set of circumstances involving illness, complications or risk of complications arising out of pregnancy or confinement. The Office analysis had revealed that, in these types of circumstances, national law and practice varied in providing an extension of maternity leave, which was considered strictly as a lengthening of the maternity leave period, or in providing, more broadly, some type of additional leave. Additional leave might be treated under national provisions in a variety of ways, and might include leave regulated under provisions relating to sickness, disability, or other necessary absence from the workplace, or even special provisions in the context of maternity leave. Additional leave was thus a broader concept than extension of maternity leave, since it might include, but did not necessarily include, provisions for extension of maternity leave as such. Point 8(2) of the proposed Office text used the broader term "additional leave", rather than limiting the provision to extension of maternity leave. It thus would require the competent authority to provide for additional leave under the narrow set of circumstances referred to above, but at the same time would leave to the discretion of the authority exactly how such leave would be provided. The distinction between extension of maternity leave and additional leave was not borne out in the drafting of Convention No. 103. The Conference Committee discussions in 1952, which resulted in Articles 3(5) and 3(6) of that Convention, reflected a general consensus that any sickness arising out of pregnancy or the birthing process (confinement) should be considered as a "part of maternity leave". Point 8(2) was broader in that it did not prejudice the question of whether sick leave or some other type of leave would be provided.

149. The Government member of Croatia suggested that additional leave should be provided in the event of the sickness of the child.

150. The Employer members and the Government members of Australia, Canada and the United States withdrew their amendments to delete Point 8(2).

151. The Employer members submitted an amendment to delete the word "additional" and replace it with the word "sick" and to move the amended paragraph to the Recommendation. Nevertheless, in view of the fact that this was the first discussion and that a further year's investigation and consideration would follow, and also noting that there would subsequently be discussion on the types of benefits to be payable, the Employer members were prepared to withdraw that portion of their proposed amendment that would have moved the paragraph to the Recommendation. They would, however, initiate a discussion at the next session of the Conference on the question of whether provision for such leave should appear in a Convention or in a Recommendation. For present purposes, however, the Employer members proposed a debate on the substance of the provision.

152. The Employer Vice-Chairperson then indicated that the purpose of the proposed amendment could be gleaned from the Office report itself. It appeared that the majority of Governments considered that, in the circumstances addressed by the provision, the most appropriate form of leave to be granted was sick leave. The Proposed Conclusions, however, would appear to create a third category of leave, the precise nature and parameters of which were not sufficiently clear to appear in a Convention. In the ordinary course of things when a worker had a medical certificate attesting to illness, the most appropriate form of leave was sick leave, notwithstanding whether the worker in question might be an expectant or nursing mother.

153. The Worker Vice-Chairperson regretted that the Employer members could not accept the use of the word "additional" in the text. The Office had made clear that the use of the word "additional" was not intended to denote a different form of leave, but to take into account the fact that in the national law and practice of ILO member States different forms of leave were granted under the circumstances which the paragraph contemplated. In the Worker members' view, it was essential that the leave to be granted to women ill during or after pregnancy be in addition to their normal maternity leave entitlement.

154. The Government members of Austria, Belgium, Canada, Denmark, Finland, France, Germany, Italy, Luxembourg, the Netherlands, Norway, Spain, Sweden and the United Kingdom proposed a subamendment to replace the word "sick" with the words "maternity leave, sick leave or some other form of" and to add the phrase "the form and maximum duration of such leave to be determined by the competent authority". Possible questions of interpretation might arise from the inclusion of the term "additional leave" as to whether it was intended to create a new form of leave or whether it was a term intended to accommodate differing national circumstances. In this respect, however, page 62 of Report V(2) made it clear that the term was intended to cover different national practices and was therefore intended to be one of wide application. The proposed subamendment would allow sufficient flexibility, without the need for the word "additional". The description of the different types of leave would make clear that the leave contemplated by the provision was different from, and therefore in addition to, maternity leave.

155. The Employer Vice-Chairperson found the suggestion particularly useful as it addressed the concerns of the Employer members with regard to the words "additional leave", particularly in light of the discussion yet to come on Point 9(1). Such wording would leave to governments the right to determine the type and duration of leave which should be accorded in such circumstances. Nonetheless, it would be preferable to specify that it was "by national law and practice" that such a determination should be made. Clear laws were needed to avoid any confusion that might arise from the switching from one type of leave to another.

156. The Worker Vice-Chairperson proposed reinserting the word "additional" after the words "form of" in order to specify that such leave should be granted in addition to, rather than in replacement of, maternity leave. She also suggested that the determination of the form and duration of such additional leave should be made by the competent authority in consultation with the representative organizations of employers and workers. She noted that the Worker members would have been prepared to accept the Office text.

157. The Employer Vice-Chairperson rejected the reinsertion of the word "additional", which would defeat the purpose of clarifying the rather nebulous concept of "additional leave". Further, the Employer members could not accept the Worker members' proposal that there be an obligation to consult with workers' and employers' organizations concerning the form of leave which was appropriate. National law and practice were the most appropriate means to determine the form of leave to be granted. As it was not merely a question of the duration of the leave but of the form as well, this raised important questions with regard to both the type of benefits which would be appropriate, and the sources of funding for them. These matters should be determined by national law and practice.

158. The Government member of the United Kingdom stated that in his view this was a matter to be determined by national law and practice. The reference in the Office proposal to the "competent authority" would achieve that. As far as possible, changes in leave regulations should be made in partnership with representatives of both workers and employers. In order to advance the discussion, he proposed a sub-subamendment so that the last sentence of the proposed text would read as follows:

The form and maximum duration of such leave to be determined by the competent authority in accordance with national law and practice after consultation with the most representative organizations of workers and employers.

The Government member of the United Kingdom stated that, with all previous proposals incorporated, the text before the Committee would read as follows:

On the basis of a medical certificate, maternity leave, sick leave or some other form of additional leave should be provided before or after confinement in case of illness, complication or risk of complications arising out of pregnancy or confinement. The form and maximum duration of such leave to be determined by the competent authority in accordance with national law