Maternity protection at work
Revision of the Maternity Protection Convention (Revised), 1952 (No. 103), and Recommendation, 1952 (No. 95)
Fifth item on the agenda
International Labour Office Geneva
At its 268th Session (March 1997), the Governing Body of the International Labour Organization decided to put on the agenda of the 87th Session (1999) of the International Labour Conference the revision of the Maternity Protection Convention (Revised), 1952 (No. 103), and Recommendation, 1952 (No. 95). This law and practice report has accordingly been drafted to facilitate the discussion at the conference.
Maternity protection of women at work has been of core importance to the International Labour Organization since its establishment in 1919. The Maternity Protection Convention, 1919 (No. 3), was among the first instruments to be adopted. In 1952, this Convention was revised to take into consideration developments in national law and practice, especially in the realm of social security. The years since 1952 have similarly seen dramatic changes, notably in the participation of women in the workforce, and an ever growing commitment to eliminate discrimination in employment. However, the resulting increased importance of maternity protection to women at work has not resulted in a high number of ratifications of either Convention No. 3 or Convention No. 103. As of June 1997,36countries had ratified the Maternity Protection Convention (Revised), 1952 (No. 103), and 17 other countries had ratified the Maternity Protection Convention, 1919 (No. 3).
This report outlines and evaluates the key provisions of law in ILO member States which provide maternity protection to women when their work life coincides with their child-bearing years. It also incorporates examples of practice which illustrate the ways in which the maternity protection afforded to women may be more or less than that provided for by law.
Chapter 1 highlights the changes that have taken place since 1952 with respect to women and employment in ILO member States and how these changes necessitate a fresh examination of maternity protection in employment. The labour market participation rates of women have increased worldwide, strengthening their economic roles in society and the family. Women in many countries have begun to see maternity protection laws as a means to reduce discrimination in employment on the basis of their actual or potential role as mothers.
Chapter 2 surveys the scope of national laws providing for maternity protection, noting the principal inclusions and exclusions in ILO member States. Differences in scope among various pieces of national legislation regarding the provision of leave, cash benefits and medical benefits may result in uneven coverage. While a picture emerges of a move towards maternity protection for all employed women, large groups of women workers continue to be excluded.
Chapter 3 examines the maternity leave provisions of ILO member States. The duration of leave, its distribution before and after childbirth, its compulsory or non-compulsory nature, and possible extensions of leave due to illness or complications arising from pregnancy and childbirth are described. Qualifying conditions which might prevent a woman from benefiting from the standard leave allowance are also noted.
Chapter 4 addresses the fundamental employment rights -- protection from dismissal and the right to return to work -- for pregnant and nursing workers. Pregnancy today still leads to job loss and maternity leave may result in termination of employment, rather than a mere suspension of work. The chapter discusses the extent and limitations of the protection afforded by legislative measures adopted in the member States.
Chapter 5 surveys the manner in which cash and medical benefits are provided to women workers on maternity leave in ILO member States. Recent trends in social security are highlighted, and differences in scope regarding medical care and cash benefits are discussed. In addition, the chapter reviews the role of employers in providing maternity benefits in light of current practice.
Chapter 6 focuses on the occupational safety and health dimensions of maternity protection. The major health considerations with regard to the regulation of working time and the prohibition of dangerous or unhealthy types of work during pregnancy and nursing are illustrated through the approaches adopted in ILO member States to prevent exposure of working women to work detrimental to the health of mother and child. Finally, the health and economic aspects of breast-feeding are examined in the light of the widespread provision for nursing breaks during the months following return to work.
Chapter 7 looks beyond the protection of women's child-bearing role to the question of child-rearing, and examines the provision for parental, paternity and adoption leave in ILO member States. Such types of leave are often viewed as a means to offer equal opportunities for men and women to combine parenthood with professional life.
The International Labour Conference will address the question of the revision of the Maternity Protection (Revised) Convention, 1952 (No. 103), and Recommendation, 1952 (No. 95), in accordance with the double-discussion procedure set out in article 10 of the Standing Orders of the Governing Body and article 39 of its own Standing Orders. The latter article requires that this report and the accompanying questionnaire be communicated to governments not less than 18 months before the opening of the 87th Session of the Conference in 1999. So that the Office may have time to examine replies to the questionnaire and to prepare a second report, governments are requested to send their replies so as to reach the Office in Geneva not later than 30 June 1998, as the second report must be communicated to them not less than four months before the opening of the session.
The Office wishes to draw Governments' attention to article 39, paragraph 1, of the Standing Orders of the International Labour Conference, which calls on them "to consult the most representative organizations of employers and workers before finalizing their replies". The results of this consultation should be reflected in the governments' replies. Governments are requested to indicate in their replies which organizations have been so consulted.
Maternity protection in the last half century has been marked by progress in law, an evolution in workplace practice and rising social expectations regarding the rights of working women during their child-bearing years. Yet the gains registered have so far failed to resolve the fundamental problem experienced by most, if not all, working women at some point in their professional lives: unequal treatment in employment due to their reproductive role.
Women at work
Such discrimination is felt ever more acutely as more women spend a greater portion of their lives in paid employment. Indeed, among the most remarkable changes to have occurred in the past 50 years has been the rapid rise in labour market participation by women. Their worldwide economic activity rates climbed from 54 per cent in 1950 to 66 per cent in 1990; they are projected to reach almost 70 per cent in the year 2010. In the more developed regions, the growth has been even more dramatic, starting from a lower initial rate of 47 per cent, but expected to climb to over 80 per cent by 2010.
Two generations ago, women typically entered the workforce in the greatest numbers in their early twenties, with many leaving a few years later to bear and raise their children. In 1950, the worldwide economic activity rate for women rose to 59 per cent in the 20 to 24 age bracket, fell to 54 per cent for women ten years older, remained relatively constant for 15 years and then fell rapidly after age 49. By 1990, worldwide economic activity rates had assumed a new pattern of high entry rates for women in their twenties, rising labour market participation throughout their thirties and forties, and declining employment from age 50 onwards. In other words, more women were spending their child-bearing years in paid employment.
FIGURE 2. ECONOMIC ACTIVITY RATES BY SEX AND AGE GROUP FOR 1950, 1970, 1990 AND 2010 (WORLD)
At the regional level, fairly distinct patterns have emerged, demonstrating the impact of differing levels of economic development as well as cultural attitudes towards women's economic role. In Europe and Northern America in 1950, women's working lives were distinguished by relatively high rates of economic activity in the early twenties, by a second, but lower peak in the forties, and with lower rates during the child-bearing years. In the past two decades, however, this pattern has been largely replaced by one marked by high entry rates in the twenties and a continuous rise into the forties, thus coming to resemble more closely the pattern characteristic of male employment.
FIGURE 3. WOMEN'S ECONOMIC ACTIVITY RATES BY AGE GROUP FOR 1950, 1970, 1990 AND 2010 (EUROPE AND NORTHERN AMERICA)
In Latin America and the Caribbean in 1950, women's highest rate of economic activity was 27 per cent for the 20 to 24 age group, falling to 21 per cent during the remaining child-bearing years. In Oceania in 1950, the initially high activity rate of 64 per cent for the 15- to 19-year age bracket dropped precipitously as women entered their child-bearing years, never to attain more than 27 per cent after age 30. Both these regions have seen women's activity rates more than double and, for some age brackets, almost triple in the intervening 40 years. More women in these regions are spending more of their early child-bearing years in paid employment.
FIGURE 4. WOMEN'S ECONOMIC ACTIVITY RATES BY AGE GROUP FOR 1950, 1970, 1990 AND 2010 (LATIN AMERICA AND THE CARIBBEAN AND OCEANIA)
Africa and Asia present a different pattern of women's activity rates, since these are high throughout life and have evolved comparatively little since 1950. Nonetheless, a rise in participation is expected by 2010, with African women maintaining 60 to 66 per cent activity rates throughout their principal child-bearing years, and Asian women's rates rising continuously from 67 per cent in the 20 to 24 age group to 75 per cent in the 35 to 39 age group.
FIGURE 5. WOMEN'S ECONOMIC ACTIVITY RATES BY AGE GROUP FOR 1950, 1970, 1990 AND 2010 (AFRICA AND ASIA)
The notion that men are the sole providers for women and children has rapidly become a myth of the past. Nowadays, an increasing number of households in all regions of the world depend on two earners to maintain a suitable standard of living. In many countries, women's earned income is vital for the survival of the family. A recent study showed that 59 per cent of European working women and 55 per cent of their counterparts in the United States supplied half or more of their family's household income, with one out of four women in Europe providing the total household income.2 In India, an estimated 60 million people live in households maintained by women. Worldwide, women provide the main source of income in approximately 30 per cent of households, while the vast majority of male-headed households have women members who contribute labour, income and other forms of support.3
What are the implications of these changes? First, the number of women working throughout their child-bearing years is escalating, a fact which makes adequate maternity protection even more imperative. Not only is maternity leave and appropriate medical care essential to enable a woman to retain or regain her health and to return to work, but income replacement during her leave period has become indispensable for the well-being of herself, her child and her family.
Second, as joint breadwinning becomes the norm, discrimination in employment on the basis of actual or potential maternity has implications for the whole of society. Indeed, the positive momentum signalled above can hardly conceal a troubling underlying reality. In all parts of the world, working women who become pregnant are faced with the threat of job loss, suspended earnings and increased health risks due to inadequate safeguards for their employment and the rights which derive therefrom. Their situation has evolved only slowly. As the world approaches the new century, governments and the social partners must face the fact that maternity protection for vast numbers of working women is still barely assured. Protecting their health, ensuring their employment and providing a reasonable level of income to employed women before and after childbirth remains a challenge. A momentous task lies ahead.
Safe motherhood: The global challenge
Most of the 200 million pregnancies which occur worldwide each year result in the birth of a live baby to a healthy mother. In recent decades, tremendous efforts have been deployed to raise women's overall health security and to improve survival rates for infants. The impact of these efforts is evident in the fact that between 1970 and 1994 female life expectancy rose as the total fertility rate declined in all regions of the world.4 Infant mortality rates between 1960 and 1994 dropped precipitously, by three-fifths in the Arab States (from 166 per 1,000 live births to 67), by 70 per cent in East Asia (from 146 to 41), by 65 per cent in Latin America and the Caribbean (from 107 to 38), by more than half in South Asia (from 163 to 73) and by more than 40 per cent in sub-Saharan Africa (from 166 to 97).5 This advance has come about in parallel with high or rising rates of women's employment.
Yet, despite these improvements, maternal and infant mortality rates remain unacceptably high. Indeed, the disparity in maternal mortality rates between rich and poor countries is greater than any other public health indicator. Of the more than 500,000 maternal deaths which are recorded each year, an estimated 99 per cent occur in developing countries.6 Worldwide the maternal mortality rate is currently estimated at 416 per 100,000 live births, with industrial countries experiencing 31 per 100,000 and the least developed countries witnessing 1,030 per 100,000.7 In 1989, the average lifetime risk of dying of a pregnancy-related cause was between one in 15 and one in 50 in the developing world, compared with a risk varying from one in 4,000 to one in 10,000 in the developed world.
These figures, however shocking, represent only the tip of the iceberg. They include only the officially reported deaths and may thus account for only a fraction of the total number. Nor do they make reference to the millions more women who suffer acute or chronic damage to their health from the untreated complications of pregnancy and labour. Some 20 million cases of severe maternal morbidity occur annually. Furthermore, although infant mortality rates have dropped markedly in recent decades, the fact remains that each year some 4 million infants die within the first month of life, two-thirds of these within the first week.8
It is against this backdrop of extensive, largely preventable human suffering that an international Convention seeking to promote maternity protection should be viewed.
The portion of maternal mortality and morbidity affecting women employed in the formal sector is not known. Some observers note, however, that women who remain employed throughout their pregnancy, are granted maternity leave and return to work after that leave are far less likely to suffer negative outcomes of pregnancy thanks to their greater command of economic resources and their greater access to prenatal, confinement and postnatal health care. Indeed, a strengthening of employment rights to avoid dismissal due to pregnancy and to ensure that maternity leave does not result in discriminatory termination of employment is seen as a fundamental element of maternity protection.
Equality in employment: Proclaimed everywhere, fully realized nowhere
While women's employment rates have risen in many regions of the world, the quality of their employment remains far below that of men. Compared to men, women still face unequal hiring standards, unequal opportunities for training and retraining, unequal pay for work of equal value, and unequal promotion prospects. They also face a greater likelihood of experiencing unemployment and poverty.9
These inequities are so widely recognized that more than 150 countries have assumed international obligations to take all appropriate measures to eliminate discrimination against women in the field of employment, in particular by ensuring "the right to the same employment opportunities, including the application of the same criteria for selection . . .; the right to free choice of profession and employment, the right to promotion, job security and all benefits and conditions of service and the right to receive vocational training and retraining . . .; the right to equal remuneration . . . and to equal treatment in respect of work of equal value", among other rights.10
Major international conferences have further highlighted the need to eliminate gender discrimination in employment, notably the World Summit for Social Development (Copenhagen, 1995)11 and the Fourth World Conference on Women (Beijing, 1995).12 The International Conference on Population and Development (Cairo, 1994) specifically called for the elimination of "discriminatory practices by employers against women, such as those based on proof of contraceptive use or pregnancy status".13
Discriminatory hiring based on potential or actual maternity may involve practices which enter deeply into the private lives of the workers involved. In some countries, employers may require a negative pregnancy test, a gynaecological examination, or a medical certificate attesting to sterilization as a condition of employment. For example, the ILO Committee of Experts reporting on the application of the Discrimination (Employment and Occupation) Convention, 1958 (No. 111), noted from a report that, in one country, "numerous employers, with impunity, require[d] women seeking employment or wishing to keep their jobs to furnish certificates attesting to their sterilization".14 In a number of countries, the elimination of such practices has become the subject of legislative action. Brazil, for example, has recently passed legislation imposing strong penalties on employers who require a certificate of sterilization as a condition of employment.15 Colombia has issued a resolution which restricts the employer's right to demand a pregnancy test of a jobseeker to employment or occupations where pregnancies might be at risk.16 The Ministry of Labour of Chile has prepared draft legislation which would prohibit employers from demanding medical certificates to establish non-pregnancy at the time of recruitment or requiring a commitment from the employee that she will not become pregnant during her contract.17
In some countries, employers inquire about candidates' intentions with regard to child-bearing during the recruitment process. Intrusive questions may be asked regarding sexual activity or the use of birth control.18 Some countries are making efforts to put an end to such practices. In the United Kingdom, for example, the Equal Opportunities Commission has issued a Code of Practice for the elimination of discrimination on the ground of sex and marriage and the promotion of equal opportunity in employment. The code recommends that interview questions be related to the requirements of the job and that "questions about marriage plans or family intentions should not be asked, as they could be construed as showing bias against women. Information necessary for personal records can be collected after a job offer has been made".19
Once hired, women face potential job loss should they become pregnant and their pregnancy become known. Termination of employment on the grounds of pregnancy is said to occur even in countries which outlaw the practice.20 In the United Kingdom, more than one in eight of the inquiries received by the Equal Opportunities Commission relate to dismissal due to pregnancy.21 In Spain, the General Union of Workers (UGT) observed that employers dismissed women or did not renew their contracts on account of pregnancy and, in certain situations, employers offered temporary workers employment for an indefinite period if they relinquished their maternity rights. This was said to occur despite the availability of procedures of redress for victims of such discrimination.22
The vulnerability of women workers to dismissal during maternity leave is an ongoing concern. According to the data of the Directorate of Public Prosecutions and Labour Inspection of the Russian Federation, the number of violations of women's labour rights has increased significantly in recent years. The unlawful dismissal of women during maternity leave or during the period of nursing has become a common fact, particularly when enterprises are restructured or change ownership.23 Dismissal during maternity leave was prohibited in Maternity Protection Conventions Nos. 3 and 103, and the period of protection was extended from the notification of pregnancy through at least the first month after return to work in Recommendation No. 95.
Women who return to work after childbirth face the task of reconciling their professional lives with their new family roles. Most will cope with the strains of a double day: fulfilling performance requirements on the job while striving to meet the needs of their child for nurturing. Some will discover, however, that their return to work is marked by resentment from colleagues or less favourable treatment by employers.24 A recent study of 793 Chilean workers who returned to work after maternity leave found that 24 per cent of them had experienced some type of negative treatment. Most frequently, this included transfer to a lower position, job loss, verbal abuse, social isolation or "shunning".25
Professional women may find themselves subtly or directly placed in job assignments which carry less status and offer fewer opportunities for advancement. Unspoken obstacles -- from early evening business meetings to the assumption of disinterest in more challenging work assignments -- may effectively prevent full reintegration on the job, causing some women to renounce their ambitions and to resign themselves to lesser employment prospects than their qualifications would warrant. Forfeited career opportunities represent not only long-term earnings loss for the woman and her family, but in cumulative terms, a tremendous reduction of women's potential contribution to economic growth.26 Discrimination on the basis of maternity is costly: to women, their families and society as a whole.
Maternity protection: A condition for equality
In the past 50 years, the principle of equality between men and women has been firmly anchored in the constitutions and national legislations of countries around the world. Its embodiment in law has compelled a profound rethinking of the status of women, their role in society and their contribution to the economy. It has forged the recognition that the improvement of women's employment situation may depend less on protective measures than on equal opportunity and treatment in the workplace. Women need to have their work remunerated at rates established without discrimination based on sex to establish the material basis for equality. The adoption by the ILO of the Equal Remuneration Convention, 1951 (No. 100), and its accompanying Recommendation (No. 90) established the principle of non-discrimination between men and women in respect of remuneration to ensure equal pay for work of equal value.
The principle of non-discrimination was taken a step further with the adoption of the Discrimination (Employment and Occupation) Convention, 1958 (No. 111), and its accompanying Recommendation (No. 111). Discrimination was defined in Article 1, paragraph 1, to include:
(a) any distinction, exclusion or preference made on the basis of . . . sex . . . which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation.
In Article 2, ratifying member States were required to declare and pursue a national policy designed to promote equality of opportunity and treatment in respect of employment and occupation, with a view to eliminating discrimination.
Since the adoption of that Convention, a gradual shift has occurred in the social and labour legislation governing women's employment. There has been a discernible move away from a purely protective approach, aimed at limiting women's exposure to the hazards of the industrial workplace, to one based on equal rights in employment and the elimination of unfair practices. The protective legislation which characterized the first half of the century has been revisited, questioned and, in some instances, overturned in light of its discriminatory effects. This includes the general prohibition of night work for women, the gender-based limitation of working hours, and the exclusion of women from certain occupations or activities due to sex rather than to their capacity to perform the job.
In 1975, ILO member States adopted a Declaration on Equality of Opportunity and Treatment for Women Workers, which linked the prohibition of discrimination against women on the grounds of pregnancy and childbirth with the right to employment protection during pregnancy and maternity leave as well as the specific protections provided in Convention No. 103. Article 8, paragraphs 1 and 3, of the Declaration provided:
1. There shall be no discrimination against women workers on the grounds of pregnancy and childbirth and women bearing a child shall be protected from dismissal on such grounds during the entire period of pregnancy and maternity leave. They shall have the right to resume their employment without loss of acquired rights. . . .
3. Because maternity is a social function, all women workers shall be entitled to full maternity protection in line with the minimum standards set forth in the Maternity Protection Convention (Revised), 1952 (No. 103), and the Maternity Protection Recommendation, 1952 (No. 95), the costs of which should be borne by social security or other public funds or by means of collective agreements.
Through this Declaration, ILO member States expressed their belief that equality of opportunity and treatment of women workers can only be achieved through a combination of legal measures: the elimination of maternity as a source of discrimination; employment security throughout pregnancy; the right to maternity leave and benefits; and the right to return to work without loss of acquired rights. The special protection afforded to women workers during pregnancy and after childbirth was not seen as an exception to equal treatment, but rather a condition for non-discrimination in employment.
The challenge for member States is clear: to ensure that in the 21st century, maternity protection achieves the double goal of safeguarding health and ensuring employment rights in order to enable men and women to work together on the basis of equality.
1 Data used for the figures in this chapter were taken from ILO, Bureau of Labour Statistics: Economically active population, 1950-2010, fourth edition (Geneva, December 1996).
2 H. Wilkinson and I. Briscoe: Parental leave: The price of family values? (London, DEMOS, 1996), p. 7.
3 H. O'Connell: Women and the family (London, Zed Books, 1994), p. 67.
4 UNDP: Human Development Report 1997 (New York, 1997), No. 47, Table 10: Regional aggregates of human development indicators.
5 ibid., Table 8: Trends in human development.
6 United Nations: Women: Challenges to the year 2000 (New York, 1991), p. 20.
7 UNDP, op. cit., Table 12: Child survival and development.
8 WHO: Mother-baby
package: Implementing safe motherhood in countries, document
no. WHO/FHE /MSM/94.11(Rev.1) (Geneva, 1996), p. 7.
9 L.L. Lim: More and better jobs for women (Geneva, ILO, 1996).
10 These and other rights are included in Article 11 of the Convention on the Elimination of All Forms of Discrimination against Women. As of 25 March 1997, 97 countries have signed and 156 have ratified or acceded to this Convention.
11 Paragraph 56(b) of the Copenhagen Declaration and Programme of Action includes "eliminating gender discrimination . . . in hiring, wages, access to credit, benefits, promotion, training, career development, job assignment, working conditions, job security and social security benefits".
12 The Beijing Declaration and Platform for Action included as strategic objective F.5 the elimination of occupational segregation and all forms of employment discrimination. Paragraph 178(c) encourages member States of the United Nations to "enact and enforce laws and develop workplace policies against gender discrimination in the labour market, . . . in hiring and promotion, and in the extension of employment benefits and social security, as well as regarding discriminatory working conditions and sexual harassment". In addition, "mechanisms should be developed for the regular review and monitoring of such laws".
13 Programme of Action adopted at the International Conference on Population and Development (Cairo, 5-13 September 1994), para. 4.4(f).
14 Report presented to the Federal Senate by a Joint Parliamentary Committee of Investigation on the Incidence of Massive Sterilization of Brazilian Women, cited in ILO: Report of the Committee of Experts on the Application of Conventions and Recommendations, Report III (Part 4A), International Labour Conference, 80th Session, 1993, p. 321.
15 Act No. 9029 to prohibit the requirement of a certificate of pregnancy or sterilization and other discriminatory practices, for the purposes of admission to work or maintenance of the legal employment relationship, dated 13 April 1995 (Diário Oficial, No. 73, 17 April 1995, p. 1).
16 Ministry of Labour and Social Security Resolution No. 3716 restricting the requirement of a pregnancy test for obtaining employment in both the private and public sectors to employment or occupations where pregnancies might be at risk, dated 3 November 1994. Committee of Experts on the Application of Conventions and Recommendations: "Individual observation concerning the Discrimination (Employment and Occupation) Convention, 1958 (No. 111)," in ILOLEX 1997 database (Geneva, ILO, February 1995).
17 M.R. Velásquez: "Four workers' representatives speak," in Spotlight, No. 14, June 1997, p. 2 (newsletter of the Labour and Population Programme, Development Policies Department, ILO, Geneva).
18 See ILO: Protection of workers' personal data: An ILO code of practice (Geneva, 1997), which states that "An employer should not collect personal data concerning a worker's sex life" (para. 6.5) and that "medical personal data should not be collected except in conformity with national legislation" (para. 6.7). If a worker is asked questions inconsistent with these principles and the worker gives an inaccurate or incomplete answer, the worker should not be subject to termination of the employment relationship or other disciplinary measure (para. 6.8). In so doing, "the code shares the view of many national courts that, especially in connection with hiring procedures, workers are justified in refusing to answer questions that are incompatible with the code" (para. 6.8).
19 C. Palmer: Maternity rights (London, Legal Action Group, 1996), p. 26.
20 The Termination of Employment Convention, 1982 (No. 158), specifies in Article 5 that pregnancy shall not constitute a valid reason for termination.
21 "Pregnancy and dismissal", in Labour Research (London), July 1966, p. 23.
22 ILO: Report of the Committee of Experts on the Application of Conventions and Recommendations, Report III (Part 4A), International Labour Conference, 80th Session (Geneva, 1993), pp. 366-367.
23 Information provided to the ILO by the Ministry of Labour and Social Development of the Russian Federation, March 1997.
24 The Beijing Platform of Action calls for the elimination of "discriminatory practices by employers on the basis of women's reproductive roles and functions", paragraph 178(d).
25 H. Henríquez, V. Riquelme and T. Cárdenas: Las normas que protegen la maternidad en Chile: El comportamiento de las empresas (Santiago, Dirección del Trabajo, Departamento de Estudios, 1996).
26 ILO: Breaking through the glass ceiling: Women in management (Geneva, 1997).
A woman worker who becomes pregnant is immediately confronted by myriad employment-related issues, the most important of which include the effects upon her job of her pregnancy and her absence from work before and after childbirth. Will she be protected against dismissal during pregnancy and leave? Will she have the right to cash and medical benefits? If her job is physically demanding, will her employer be required to temporarily alter her work duties to accommodate her health? The answers to these questions are found in the specific legislation governing maternity protection provisions in her country. The definition of scope will determine her eligibility for protection.
The provisions of law defining the scope of persons to whom the maternity protection apply vary widely from country to country. In this chapter, these provisions as established by national legislation will be examined in light of those prescribed by the Maternity Protection Convention (Revised), 1952 (No. 103).
The scope of Convention No. 103
In Convention No. 103, the term "woman" is broadly defined as"any female person, irrespective of age, nationality, race or creed, whether married or unmarried", and "child" means "any child whether born of marriage or not".1 In so defining "women," Convention No. 103 lays down the principle of non-discrimination with respect to all women workers. The instrument thus applies to all women without qualification, if they are employed in the specified types of undertakings or occupations.
The scope established by Convention No. 103 is quite broad. It covers women employed in industrial undertakings and non-industrial and agricultural occupations, including women wage-earners working at home.2 The term "industrial undertakings" is further defined with detailed descriptions of industries covered in four general sectors, whether public or private: mining; manufacturing and power generation; construction of buildings and public works; and the transport of passengers and goods by rail, sea or inland waterway. The term "non-industrial occupation" is defined to include the following types of undertaking, whether public or private: commercial establishments; postal and telecommunication services; establishments and administrative services in which the persons employed are mainly engaged in clerical work; newspaper undertakings; hotels, boarding houses, restaurants, clubs, cafés and other refreshment houses; establishments for the treatment and care of the sick, infirm, destitute and of orphans; theatres and places of entertainment; and domestic work for wages in private households. Thus Convention No. 103 covers four types of industrial undertaking and their branches and a variety of occupations carried on in numerous non-industrial undertakings, whether public or private, including two classes of occupation: women employed in the agricultural occupations3 and homeworkers.
Besides establishing broad coverage, Convention No. 103 allows countries to provide for limited exclusions. In addition to allowing countries to exempt undertakings in which only members of the employer's family are employed,4 Convention No. 103 allows member States to provide for five additional types of exceptions at the time of ratification: certain categories of non-industrial occupations; occupations carried on in agricultural undertakings (other than plantations); domestic work for wages in private households; women wage-earners working at home; and undertakings engaged in the transport of passengers or goods by sea. Should a Member make a declaration providing for exceptions, it is required to make periodic reports concerning the application of the Convention to these excluded categories.5
Scope of national legislation
Ascertaining the exact extent to which the laws of each country cover the types of undertakings and occupations referred to in Convention No. 103 is difficult due to the variety of ways in maternity protection is provided in different countries.6 In many countries, all major provisions relating to maternity protection are found within a single labour code, in which case there is a single definition of the persons to whom the provisions apply. In others, however, maternity protection provisions are contained in various pieces of legislation which relate to specific aspects of maternity protection, such as employment protection, social security, health and safety and equal opportunity, to name the most common. In such cases, each legislative instrument will have a separate provision describing the persons to whom the text applies. While the scope may be defined identically among the different legislative schemes, this is not always the case, and coverage may also be modified by regulations or collective bargaining agreements.
The differences among scope provisions of relevant legislation and the occasional lack of clarity in definitions used may give rise to gaps in coverage which are difficult to assess. Thus, within a particular country, a woman may be entitled to some aspects of maternity protection, but not others. The most common instance is that of an employed woman who has a right to maternity leave under the general labour code, but no right to cash benefits under social security because coverage for cash benefits is narrower than that for maternity leave.7
A survey of the manner in which national legislation addresses the persons, sectors of economic activity and categories of workers covered shows that the scope is wide enough in many countries to include the undertakings and occupations covered in Convention No. 103. Nonetheless, significant problems still exist with respect to coverage of women employed in agriculture, or those working as homeworkers, domestic workers or on a casual, contract or temporary basis.
The scope of maternity protection under national legislation in some countries includes to all employed women, although important restrictions exist with regard to age, residence and income level, for example.
The term "woman" is generally defined broadly in a manner which accords with the approach taken in Convention No. 103, but some restrictions have been found in the legislation of a few countries. Some specify an age range for eligibility for benefits, although this generally corresponds to or exceeds a woman's child-bearing years. For example, this is the case with regard to qualification for cash benefits in Dominica, where women between the ages of 16 and 60 years are eligible; in the Dominican Republic, where women between the ages of 14 and 60 years are eligible; and in Finland, where women workers between the ages of 16 and 64 years are eligible. Medical benefits may also be limited to legal residents, as discussed in Chapter 5.
There are other restrictions upon women who are eligible. Women may be excluded from coverage if they earn too high a salary, as in South Africa. Women working as high-level managers in Paraguay and managers in Singapore are excluded. In some countries, eligibility to leave may also be limited to a certain number of pregnancies. In rare instances, maternity protection rights may be denied if an unmarried woman becomes pregnant.8
Even if a worker falls within the scope of maternity protection as provided within national legislation, she may not be eligible for benefits because of the existence of time-in-service requirements or minimum contribution levels to qualify for social security benefits. Qualifying periods of three to 12 months of employment are frequently found in national laws and collective agreements with regard to access to benefits. While technically not part of the scope definitions, eligibility requirements operate as a means to narrow the application of the maternity protection provision. Thus, women who would otherwise be covered are not protected for the first months or year on the job.
Sectors of economic activity
There are few examples in national legislation in which the coverage of industrial and non-industrial undertakings is defined with the detail of Convention No. 103. While types of undertakings are often specified, more often coverage is defined according to economic sectors, whether public or private.
Private and public sectors
In many countries, such as Burundi, Chile, Ecuador, Egypt, Haiti and Honduras, maternity protection applies to women in the public and private sectors, though the law may also contain specific exclusions. The terms public and private undertakings are also used in countries such as Indonesia. Such perimeters lay the groundwork for broad coverage, even if the legislation also provides for exclusions.
Public sector workers, including civil servants and other types of workers employed by national, state, provincial or local government, are usually covered by maternity protection provisions under separate legislation, as in Ecuador, Greece, India, Japan, Luxembourg, Madagascar and Togo. Often the provisions are more favourable than those applicable to the private sector. For example, public servants may have a right to longer maternity leave or cash benefits equal to a greater percentage of their salary.
Industrial and non-industrial sectors
Beyond including the public and private sectors within the definition of undertakings covered, some countries specifically mention economic sectors when defining scope. Industry or industrial establishments in general are covered, as in Cambodia, Germany, Lebanon and Nepal. Countries may also list types of industries. Factories and mining are specifically covered in Bangladesh and India as are mining and construction in the Islamic Republic of Iran and transport systems in Cambodia. Some countries also make specific mention of non-industrial sectors. Commercial undertakings are covered in Ghana, Greece, India and Japan, clerical services in Ghana and establishments employing persons for circus and other performances in India.
In national legislation, there are few exclusions by economic sector, although in some countries, workers employed in the transport of goods and those employed in non-industrial undertakings, such as theatres and newspapers, are excluded. There are also a few countries in which women working in the fishing industry are excluded, an exception not specifically mentioned in the Convention. In general, however, national legislation in the majority of countries provides for maternity protection to women employed in industrial and non-industrial enterprises in the private sector.
Women workers in the agricultural sector are specifically covered in countries such as Bahrain, Belize, Cambodia, Czech Republic, Ghana, Guinea-Bissau, Islamic Republic of Iran, Italy, Lebanon, Greece, Hungary and Madagascar, though often coverage is provided by separate legislation. In some countries, only permanent agricultural workers are covered, as in Angola and Egypt. In India, agricultural workers employed by plantations are covered, as are those working on tea estates in Nepal and Pakistan. In recent years, maternity protection coverage has been extended to agricultural workers in a number of countries, including Argentina, Ecuador and Portugal.
However, in many countries, agricultural workers are not covered, as in Bolivia, Brazil, Dominica, El Salvador, Lesotho, Peru, Philippines, Saudi Arabia, Sudan, Swaziland, Syrian Arab Republic, Turkey and Yemen. This exclusion of agricultural workers may affect a large percentage of the female workforce in some countries, where a large portion of the population works in the agricultural sector. For example, 28 per cent of women working in Bolivia work in agriculture; 10 per cent in Brazil; 86 per cent in Lesotho; 26 per cent in Peru; 34 per cent in the Philippines; 16 per cent in Saudi Arabia; 84 per cent in Sudan; 74 per cent in Swaziland; 60 per cent in the Syrian Arab Republic; 84 per cent in Turkey; and 45 per cent in Yemen.9 The exclusion of agricultural workers from the scope of maternity protection thus means that enormous numbers of women are without protection.
Types of enterprises
Characteristics of enterprises are in some cases used to define scope in national legislation. One such characteristic is the size of the enterprise, in recognition of the difficulties which small employers may have in complying with the law. A survey of employers in the United Kingdom found that four out of ten establishments with fewer than 25 employees experienced difficulty in covering the duties of a woman worker out on maternity leave, as compared to two out of ten establishments with 25 to 499 employees and fewer than one in ten establishments with more than 500 employees.10 In the United States, the Family and Medical Leave Act applies only to businesses with 50 or more employees within a 75-mile radius, while the federal Civil Rights Act, which prohibits discrimination against women on the basis of pregnancy, applies only to businesses with 15 or more employees.
Businesses employing less than a certain number of employees are excluded from coverage in some countries. For example, in India, commercial establishments employing fewer than ten employees are excluded, as are industrial enterprises of that size in Myanmar and Nepal, and in Jordan, Republic of Korea and Kuwait, enterprises employing less than five employees are not covered. Enterprise size criteria may effectively exclude large numbers of women employees from coverage, depending upon their distribution in the labour market. For example, in the Republic of Korea, 65 per cent of employed women work in enterprises employing fewer than five workers,11 whereas leave and benefits are accorded to workers in enterprises employing five or more permanent workers.
Other enterprise characteristics specified when defining scope may include their religious or charitable nature, as in Cambodia, and/or whether the enterprise is a family business. Enterprises in which members of the same family are employed are excluded from coverage in many countries, such as the Dominican Republic, Guyana, Haiti, Iraq, Japan, Jordan, Grenada, Mexico, Myanmar, Pakistan, Saint Lucia, United Republic of Tanzania, Tunisia and Uganda. Sometimes the exclusion is limited to family workers employed by a spouse or parent, as in the province of New South Wales in Australia, or to family members living in the same household, as in the Republic of Korea.
Categories of workers
Aside from defining coverage based upon the sector in which a woman works and the characteristics of the enterprise in which she is employed, some national legislation also takes account of the category of worker or form of work performed. A variety of worker categories are specifically mentioned in national legislation as included in coverage, such as acrobats, actors, artisans, artists, athletes, domestic workers, homeworkers, intellectual workers, insurance workers, labourers or manual workers, liberal professions (such as doctors and lawyers), sales representatives, service workers, taxi drivers, as well as certain unspecified professions as may be contained in legal regulations.
Various categories of worker are specifically excluded, such as women working in fishing and trapping in the Northwest Territories of Canada, homeworkers, domestic workers, salespersons, workers not covered by collective bargaining agreements and part-time workers. Of these, the most significant groups are part-time workers, homeworkers and domestic workers.
Women constitute a large percentage of the part-time labour force. Among OECD countries, women's share in part-time employment in 1995 was 63 per cent in Greece, 69 per cent in Canada, 70 per cent in Japan, 74 per cent in Australia and 88 per cent in Belgium. Women engaged in part-time work represent 8 per cent of all employed women in Greece, 28 per cent in Canada, 35 per cent in Japan, 43 per cent in Australia and 30 per cent in Belgium.12 The same year, 85 per cent of the net additional jobs taken by women in the European Union were part-time positions.13 While part-time workers are implicitly included in Convention No. 103 if they are employed within the covered sectors or occupations, the Part-Time Work Convention, 1994 (No. 175), specifically requires ratifying countries to ensure that part-time workers receive conditions equivalent to those of comparable full-time workers with regard to maternity protection, inter alia, it being understood that pecuniary entitlements may be determined in proportion to hours of work or earnings.
Part-time workers are usually included within the scope of maternity protection in national legislation. Sometimes the law specifically states that part-time workers are covered, as in Côte d'Ivoire, Czech Republic, Cuba and Grenada. While part-time workers are seldom specifically excluded,14 they may have difficulty meeting the eligibility requirements for benefits, in the form of time-in-service requirements or minimum periods of contribution which may take the part-time worker much longer to fulfil than a full-time worker. For example, in Spain, a woman worker must work for 180 days to qualify for benefits. Because the days are counted as eight-hour days, a part-time worker will need to work for a greater number of days to meet the minimum threshold. In this way, a large number of women workers may fall outside of maternity protection.
Changing enterprise structures and labour market conditions have led to an increase in home work over the past 20 years. Homeworkers are normally understood to be workers who produce goods or provide services for an employer in a place of the worker's own choosing, usually the home. Surveys indicate there are high percentages of women among homeworkers, ranging from 90 to 95 per cent in Germany, Greece, Ireland, Italy, Japan and the Netherlands.15 One survey focusing upon the Australian clothing industry showed that 95 per cent of the homeworkers were women. In the developing countries, the percentages of women are also high. In India, almost 90 per cent, or close to 2 million, of bidi (cigarette) workers are women. In the Brazilian clothing industry, close to 90 per cent of the homeworkers are women. In Algeria, a 1991 survey indicated that 97 per cent of the homeworkers were women. The Home Work Convention, 1996 (No. 177), and the Home Work Recommendation, 1996 (No. 184), provide that equality of treatment between homeworkers and other wage-earners shall be promoted in relation to maternity protection, inter alia.
Homeworkers are specifically covered by maternity protection laws in several countries, including Chile, Czech Republic, Dominican Republic, France, Guinea, Germany, Hungary and Iceland. In Austria and the Netherlands, the social security laws cover homeworkers whose earnings exceed a minimum level. However, homeworkers are specifically excluded in countries such as Argentina, Barbados, Philippines, Swaziland and Turkey. For the most part, national laws do not specifically address homeworkers, who fall within the scope of protection only if they are considered wage-earners or "employed" persons, rather than self-employed persons or independent contractors. Homeworkers' advocacy groups allege that employers sometimes require homeworkers to work on a casual, rather than permanent, basis in order to avoid liability for social security payments.16
Whether in industrialized or non-industrialized countries, a large portion of domestic workers are women. Some countries, such as Belgium, Dominican Republic, Ecuador, Fiji, Greece, Guinea, Honduras, Italy, Jamaica and Morocco, specifically include domestic workers within the coverage of maternity protection legislation. In some countries, such as Algeria and Sao Tome and Principe, domestic servants are covered, but under separate legislation. However, it is far more frequent for domestic workers to be specifically excluded from the scope of the law, as in Angola, Argentina, Cambodia, El Salvador, Egypt, Gambia, Ghana, Guinea-Bissau, Haiti, Japan, Jordan, Republic of Korea, Kuwait, Lebanon, Libyan Arab Jamahiriya, Nepal, Peru, Philippines, Saudi Arabia, Singapore, Solomon Islands, South Africa, Sudan, Swaziland, Syrian Arab Republic, Thailand, Turkey, United Arab Emirates and Yemen.
These exclusions sometimes affect a substantial numbers of women. In the Philippines, 766,200 workers, mostly female, were employed as domestic workers in 1995.17
Casual, contract and temporary workers
In recent years, there has been a rise in the number of women employed as casual workers, contract workers and temporary workers. For instance, in 1995 in the United Kingdom, 770,000 women, or 8 per cent of the female workforce, described their job as "not permanent", involving, for example, employment on "fixed-period contracts", "agency temping" or "casual work".18 These categories -- casual, contract and temporary workers -- are sometimes included within the coverage of the law, as are contract workers in Belgium, and temporary and casual workers in the Dominican Republic. In Dominica, temporary workers are covered after two weeks of employment, and in Colombia, temporary and casual workers are covered after one month of employment.
Often, however, such workers are excluded from coverage. Casual workers are specifically excluded in such countries as Angola, Australia, Bahrain, Belize, Brazil, Guyana, Haiti, Kuwait, Saint Lucia, Solomon Islands, South Africa, Sri Lanka, Viet Nam, Yemen and Zaire and temporary workers are excluded in Bahrain and Kuwait. Even if these categories of employee are not specifically excluded, many will fall outside the scope of protection because they may not be able to satisfy the eligibility requirements based upon time-in-service or a minimum period of contributions to social security.
A move towards broader coverage
Despite the wide variety of ways in which scope is articulated within each country, this survey of the legislation indicates that the scope of women covered by the legislation in most countries approaches or exceeds that prescribed by Convention No. 103 and is moving towards broad coverage for all employed women. Women are generally covered across the industrial and non-industrial sectors and in both the public and private sectors. In addition, ILO member States are extending coverage for benefits to categories of workers who were once excluded. For example, domestic workers are now covered in Brazil, Jamaica and Portugal; agricultural workers in Argentina, Ecuador and Portugal; and part-time workers in the Côte d'Ivoire, Singapore and Spain. Even women who are self-employed have been included within the scope of benefits in some countries, such as Finland, Luxembourg, Portugal, Spain and Sweden. Such extensions have a very positive impact upon the lives of women workers.
However, significant gaps still exist with respect to the agricultural sector, as well as the categories of workers analysed above, notably part-time workers, homeworkers, domestic workers, and casual, contract and temporary workers. While these gaps are lessening, much remains to be done to ensure that their legal protection becomes effective. The concern expressed by the International Labour Conference in its resolution on equal opportunities and equal treatment for men and women in employment remains relevant today:19 "Priority consideration should be given, as appropriate to national circumstances, to the gradual extension of maternity protection to women in all sectors of activity and enterprises of all sizes, including women who are casual, temporary, part-time, sub-contract and home-based workers as well as self-employed and family workers".
1 When Convention No. 3 was revised, the new Convention (No. 103) added the words "race or creed".
2 Convention No. 103 extends the scope that was first provided in Convention No. 3, which covered "public or private industrial or commercial undertakings, or in any branch thereof", to include women employed in non-industrial occupations, agricultural occupations and homeworkers.
3 The Plantations Convention, 1958 (No. 110), also contains maternity protection provisions, but its scope is limited to all plantation workers, which is a subset of the category agricultural workers found in Convention No. 103.
4 Convention No. 3 contains a similar exemption with a slightly different wording: countries may exempt "undertakings in which only members of the same family are employed".
5 Of the 34 countries that have ratified Convention No. 103, only four have made a declaration excepting these categories: Austria (domestic work), Brazil (agricultural and domestic work), the Netherlands (agricultural and domestic work), and Spain (undertakings engaged in the transport of passengers by sea).
6 ILO: Report of the Committee of Experts on the Application of Conventions and Recommendations, Report III(4), International Labour Conference, 49th Session (Geneva, 1965), para. 65, p. 197.
7 The possibility of entitlement to maternity leave without entitlement to cash benefits is well-illustrated by the differing provisions defining scope in Convention No. 103 and Convention No. 102 concerning minimum standards of social security.
Convention No. 103 covers women employed in whole sectors and whole classes of occupations. Convention No. 102, on the other hand, describes the persons protected in terms of minimum percentages of three prescribed classes: (1) not less than 50 per cent of prescribed classes of employees; (2) by prescribed classes of the economically active population constituting not less than 20 per cent of all residents; and (3) not less than 50 per cent of prescribed classes of residents. For countries with insufficiently developed economies that choose to apply the Convention progressively, women who fall into prescribed classes of employees constituting not less than 50 per cent of all employees in industrial workplaces employing at least 20 employees are covered. Whereas the spouses of covered employees are eligible for benefits, employed women falling outside the percentage of the workforce in the prescribed class would fail to qualify for benefits.
8 This applies, for example, to teachers in Trinidad and Tobago.
9 United Nations: The world's women 1995: Trends and statistics (New York, 1995), pp. 141-145.
10 C. Callender, N. Millward, S. Lissenburgh and J. Forth: Maternity rights and benefits in Britain, 1996 (London, Policy Studies Institute, 1997).
11 The equality of opportunity and treatment for workers and family responsibilities, unpublished report prepared for the ILO (Bangkok, 1997).
12 OECD: "OECD in figures: Statistics on the member countries, 1997 edition", in OECD Observer, No. 206, Supplement (Paris, June-July 1997), pp. 10-11.
13 European Commission: Employment in Europe (Brussels, 1996), p. 53.
14 Examples of countries in which part-time workers are specifically excluded are Belize (if they work less than eight hours per week), Dominica (if they work less than 21 hours per week), South Africa, and Trinidad and Tobago (less than ten hours per week).
15 ILO: Home work, Report V(1), International Labour Conference, 82nd Session 1995 (Geneva, 1995).
16 See, e.g., European Homeworking Group: "Portugal: Hidden hands", in Homeworkers in Europe (Leeds, Summer 1997), pp. 6-7.
17 M.A. Abrera-Mangahas: "General situation of child domestic workers in the Philippines", in ILO-IPEC: Consultation proceedings: Final report, National NGO Consultation on Child Domestic Workers in the Philippines, 2-4 August 1996 (Quezon City, Philippines).
18 F. Sly: "Women in the labour market: Results from the spring 1995 Labour Force Survey", in Labour market trends (London, March 1996), p. 94.
19 Resolution on equal opportunities and equal treatment for men and women in employment, adopted by the International Labour Conference at its 71st Session, Geneva, 1985.
No one will deny the particular physiological demands associated with pregnancy and confinement. As an indispensable means of protecting the health of any woman wage-earner and her child, the mother's right to a period of rest when a child is born, together with a guarantee of being able to resume work after the break with adequate means of supporting herself and her family, is the core element of any instrument seeking to reconcile women's procreative role with the demands of paid employment. The importance of this right, which is enshrined in the Maternity Protection Convention (Revised), 1952 (No. 103),1 is emphasized by the fact that the Convention in question does not make it subject to a length of service requirement. The only condition specified by Convention No. 103, and by the Maternity Protection Convention, 1919 (No. 3), before it, is the presentation of a medical certificate stating the presumed confinement date. The obligation to inform the employer is also the only condition envisaged at European level by Council Directive 92/85 of the European Commission 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 breast-feeding, ensuring that a woman wage-earner can exercise her right to maternity leave without the risk of losing her job and can benefit from other protective measures.2
The present chapter will address the topic of maternity leave as so defined, that is to say, leave whose purpose is to safeguard the health of a woman employee and that of her child during the perinatal period, whether immediately before or after the birth. Other types of leave linked to the birth or arrival in a family of a young child, natural or adopted, and aimed at promoting the upbringing of a child and reconciling family and work responsibilities are dealt with in chapter 7. Nevertheless, it is sometimes difficult to draw a distinction between these types of leave and maternity leave. The distinction tends to become blurred, especially where parental leave is not granted in addition to maternity leave but takes the place of it.
The analysis made by the ILO of different national legislations and practices based on information available to it at the time of drafting the present report shows that entitlement to maternity leave as defined above appears to be almost universally recognized and countries where women wage-earners do not have such an entitlement are rare. The entitlement may be expressly set out in national laws and elaborated or underpinned by collective agreements or arbitration awards applicable to the principle sectors, enterprises or different categories of women wage-earners. Alternatively, it may result from the application of provisions governing the period during which a woman may receive maternity benefits and the amount of such benefits (Algeria). It is worth noting that maternity leave is often covered by collective agreements. For example, in Singapore, 92 per cent of collective agreements in force as of 31 December 1996 included provisions relating to maternity leave.3
It should be emphasized that great progress has been made towards recognizing the need of women wage-earners to take time off from work at the time of a birth. In the United States, for example, where any entitlement to maternity leave once depended on works agreements and on legislation or regulations passed by individual States, a woman's entitlement to 12 weeks of unpaid leave for family or medical reasons, with a guarantee of reinstatement in the workplace, has been recognized at federal level since 1993 by the Family and Medical Leave Act. Maternity, together with health and family responsibilities, are expressly cited as possible reasons for leave. In Switzerland, maternity protection is guaranteed by the Constitution and governed by various uncoordinated statutes. A new draft law on maternity insurance was approved at the end of June 1997 and provides for the introduction of 14 weeks of paid maternity leave.4 For the time being, this only amounts to a period during which the worker may not be employed together with a limited obligation to continue paying her wages during that period.
In many cases, legislation requires only that a medical certificate be produced as a condition for taking maternity leave, in accordance with Convention No. 103. This is the case, for example, in Bahrein, Belgium, Botswana, Colombia, Fiji, France, Haiti, Honduras, Iceland, Iraq, Italy, Lebanon, Luxembourg, Paraguay, Portugal, Solomon Islands and the Syrian Arab Republic.
Of course, the obligation to notify an employer does not imply that there are no other legal or practical formalities before a woman can take maternity leave. The purpose of such formalities is, among other things, to allow employers to make any necessary arrangements to cope with the worker's future absence from the workplace and to prevent or limit any disruption to the work of the enterprise by finding a replacement or by redistributing the worker's tasks among the remaining workforce. Notification procedures vary in terms of strictness, depending on whether notification is the responsibility of the worker herself or whether or not it involves the issuing of a medical certificate by a doctor or other competent medical authority. In Germany, for example, the employer must be notified of the pregnancy and the presumed date of confinement as soon as possible. In Australia, federal legislation on maternity leave and parental leave stipulates that the woman must inform her employer that she is pregnant and will be taking leave at least ten weeks before that leave and must formally apply for leave at least four weeks before that date, stating when the period of leave will start and finish. In Austria, a worker is required to inform her employer of her pregnancy and of the likely date of the birth as soon as she herself knows. She is also required to tell the employer of the date on which prenatal leave is to start four weeks before that date.
In Ireland and the United Kingdom, notification follows a fairly strict procedure. Where this is ignored, a woman may lose the protection of the courts in the event of a dispute. However, in Ireland a recent ruling (in the case Gray v. Smith) has recognized that, if the employer provides no guidance on the regulations governing maternity, a woman employee who fails to follow the established procedure will not be considered at fault. Similarly, failure to notify the employer does not necessarily have legal consequences in countries such as France, where a woman enjoys protection by the mere fact that she is pregnant and that the employer has learned of it regardless of the means. The same applies in Denmark, Italy and Greece. In Finland, in order to enjoy full protection, a woman is required to inform her employer only if she wishes to take leave more than 30 days before the presumed date of confinement.5
In some countries, the entitlement to leave is still subject to conditions or restrictions which are not envisaged by Convention No. 103. For example, leave entitlement may depend on the number of children already in the family, the frequency of births, or both, length of service or working hours. Other restrictions may apply where application of the regulations is limited to enterprises of a certain size, as we saw in the previous chapter.
The first category of such limits is found to apply in certain countries of Africa, the English-speaking Antilles and Asia, such as Bahamas, Barbados, Egypt, Grenada, Jamaica, Malaysia and Nepal. In Nepal, a woman employee's maternity leave entitlement is limited to two confinements. In Barbados, Grenada, Egypt, Jamaica and Zimbabwe, women are entitled to three such periods of maternity leave. In the Bahamas and in the United Republic of Tanzania, maternity leave may only be taken once every three years. Such limits, which contravene Convention No. 103, may be based on demographic arguments. Such arguments may also be invoked, conversely, by certain industrialized countries which have greater resources and developed social security systems, but also ageing populations and birth and fertility rates too low to allow social regeneration, to justify longer periods of maternity leave or other benefits for mothers with a certain number of children. This is the case in France, for example, for the third and subsequent children and in Poland for the second and subsequent children.
More commonly, although also limited, is the requirement for a minimum length of service with the same employer as a condition of maternity leave. This minimum length of service is three months in Switzerland, six months in the Libyan Arab Jamahiriya, Syrian Arab Republic (in agriculture) and in Somalia (unless there has been a justified break from work), and six months during the year preceding the birth in Egypt and the Philippines. The period is 90 days during the six preceding months in Papua New Guinea (or 180 days during the preceding 12 months), 150 days in Belize, one year in Australia, Bahamas, Jamaica, Mauritius, Namibia, New Zealand and United Arab Emirates, 18 months in Grenada, and two years in Gambia and Zambia.
The trend towards extending protection to an ever growing number of women wage-earners, if not all of them, has continued in recent years. In the United Kingdom, legislation used to make it a condition for paid maternity leave with guaranteed reinstatement at work that a woman working for less than 16 hours per week should have worked for at least two years for her employer, and at least five years in the case of women working between eight and 16 hours per week. This effectively penalized a large proportion of women wage-earners, given that women account for a particularly large proportion of part-time workers. These conditions were abolished in 1994. Since then, any woman wage-earner in the United Kingdom has been entitled to maternity leave irrespective of her length of service with her employer. In New Zealand, although limits of this type still exist, the minimum length of service and the number of hours worked per week needed to qualify for maternity leave have been reduced from 18 months to one year and from 15 to ten hours respectively. Such limits also contravene the Part-Time Work Convention, 1994 (No. 175), adopted in 1994 by the International Labour Conference, which mentions maternity protection as one of the areas in which part-time workers should enjoy the same conditions as full-time workers in a comparable situation.
Length of leave
Convention No. 103 provides for a period of maternity leave of at least 12 weeks, six of which must be taken following the confinement. This effectively prohibits any resumption of work before a period of six weeks has elapsed following the birth of the child, although it allows each ratifying member State to decide how the remaining leave must or may be taken.
The countries investigated determine the length of maternity leave essentially in one of two ways: either by specifying its total length, or by specifying the prenatal and postnatal periods separately. With the first method, it is also possible to specify how all or part of the leave is allocated before and after the birth.
In many countries, a period of leave is compulsory, especially after a birth, and that period is often up to six weeks. However, both the way the total leave is allocated before and after the birth and the nature of that leave vary from one country to another. It would appear that national legislation and practice, which reflect developments in a society's concepts and policies with regard to the employment of women and the most insistent expectations of women themselves regarding their place at work and in society, are gradually giving greater weight to individual preferences and circumstances.
"Standard" or basic maternity leave
As will be seen in the chapter dealing with the financing of leave through social security or compulsory insurance schemes, women do not necessarily have any right to financial compensation. Nor does the length of the leave always correspond to the period during which cash benefits are payable by the social security or insurance scheme.
Table 1 shows the standard, minimum or basic maternity leave entitlements in 152 countries. It is based essentially on provisions generally applied in the private sector. In some countries, that period varies from sector to sector. It may be longer, or linked to greater security of employment, for example in the civil service (Egypt, Iceland, Jordan and Uruguay), or to better financial benefits under particular schemes, or to additional guarantees regarding improved conditions of employment achieved through collective bargaining or employment contracts. Variations also occur according to occupation and occupational category. To simplify analysis and comparison, the table groups available data by length of leave, differentiating between cases where leave is less than the standard 12 weeks specified by Convention No. 103, cases where that standard has been achieved and cases where it is exceeded.
Less than 12 weeks
Tunisia (30 days); Lebanon, Qatar (40 days); Papua New Guinea (6 weeks*); Bahrein, United Arab Emirates (45 days); Egypt, Libyan Arab Jamahiriya (50 days); Nepal (52 days); Bahamas, Singapore, Sudan, Switzerland, Uganda (8 weeks); Bolivia, Eritrea, Guinea-Bissau, Iceland, Iraq, Kenya, Republic of Korea, Malaysia, Mozambique, Philippines, Yemen (60 days or two months); Honduras, Jordan, Kuwait, Sao Tome and Principe, Saudi Arabia (70 days or ten weeks); Syrian Arab Republic (75 days).
Bangladesh, Barbados, Belize, Botswana, Burundi, Colombia, Dominica, Dominican Republic, Ecuador, El Salvador, Equatorial Guinea, Fiji, Gambia, Ghana, Guatemala, Haiti, India, Israel, Jamaica, Lesotho, Mauritius, Mexico, Morocco, Myanmar, Namibia, Nicaragua, Nigeria, Pakistan, Paraguay, Rwanda, Solomon Islands, South Africa, Sri Lanka, Swaziland, United Republic of Tanzania, Turkey, United States, Uruguay, Zambia.
Afghanistan, Angola, Antigua and Barbuda, Argentina, Cambodia, Chad, China, Ethiopia, Grenada, Guyana, Indonesia, Islamic Republic of Iran, Lao People's Democratic Republic, Peru, Saint Lucia, Trinidad and Tobago, Zimbabwe.
Algeria, Benin, Burkina Faso, Cameroon, Central African Republic, Comoros, Democratic Republic of the Congo, Côte d'Ivoire, Djibouti, Gabon, Germany, Guinea, Ireland, Japan, Madagascar, Mali, Mauritania, Niger, New Zealand, Panama, Portugal, Senegal, Seychelles, Somalia, Sweden, Togo, United Kingdom.
Mongolia (101 days); Belgium, Congo, Finland, Slovenia.
Austria, Cyprus, Costa Rica, France, Greece, Luxembourg, Netherlands, Poland, Romania, Spain.
or moreBrazil, Bulgaria, Canada (17 weeks); Viet Nam (4-7 months); Azerbaijan, Belarus, Chile, Cuba, Denmark, Estonia, Ukraine, Venezuela (18 weeks); Russian Federation (20 weeks); Italy (5 months); Hungary (24 weeks); Croatia (6 months and 4 weeks); Czech Republic (28 weeks); Norway (38-48 weeks); Australia (52 weeks).
* Plus prenatal leave, where required.
Sources: National legislation, information provided to the ILO in 1997 in reply to a request for information; and Conditions of work digest: Maternity and work , Vol. 13, 1994
It should be emphasized that neither the practical implementation of the leave arrangements nor the nature of the leave (minimum or compulsory) are neutral factors. They can profoundly affect a woman's actual leave entitlement. There is no real comparison between cases where maternity leave is optional, as it is in the United States, cases where the total leave entitlement corresponds to a minimum level, and cases where part of the leave or indeed all of it is compulsory (Panama). With this proviso, it can be seen from table 1 that only in 31 countries, i.e. one country in five, is the statutory leave entitlement less than 12 weeks. In more than half the countries (119) the statutory entitlement is greater than that period and in 62 countries, i.e. 41 per cent of the total, it is at least 14 weeks, the period specified by the Maternity Protection Recommendation, 1952 (No. 95), (which also corresponds to the minimum leave entitlement stipulated by the European Union Directive mentioned earlier).
It should also be noted that in practice, collective bargaining, whose importance has already been noted, can often increase the leave entitlement. This is the case in Mexico, for example, where the statutory leave entitlement is 12 weeks (84 days). In two banks (Banco Inverlat and Banco Union SA) and in the Northern Power and Electricity Company, collective agreements give female employees a leave entitlement of 90 days and 110 days respectively. In Spain, under the terms of an agreement covering the 12,000 teaching staff in private schools in the Basque region, women are entitled to 17 weeks maternity leave, while under another agreement covering the 18,000 public school teachers in the same region women have 18 weeks leave, these periods being respectively one week and two weeks longer than the statutory entitlement. In Kenya, women employed in the construction industry are entitled to 12 weeks maternity leave, which is almost one month more than the statutory entitlement.6 In the United Kingdom, an inquiry in 1995 into provisions relating to maternity based on 240 different establishments showed that 85 per cent of these establishments had maternity leave arrangements more generous than the statutory provisions.7 In Switzerland, the length of maternity leave specified in collective agreements varies according to length of service, in accordance with the relevant legislation, and is on average 7.1 weeks during the first year of service, 9.6 weeks during the second, 10.7 during the third and fourth years, 14.6 during the fifth to ninth years and so on.8 By contrast, the length of paid maternity leave is legally fixed at three weeks during the first year of service and to "a longer period determined in an equitable manner" thereafter.9
The trend towards extending maternity leave noted in 1965 by the Committee of Experts on the Application of Conventions and Recommendations10 and in 1982 by the Governing Body11 has continued. For example, in 1995 the statutory entitlement was increased from 14 to 15 weeks in Belgium and from 90 days to 14 weeks in Portugal. In Mozambique, the Labour Advisory Board recently discussed the possibility of increasing the current maternity leave allowance of 60 days to 90 days. Policies aimed at improving maternity protection in various countries over the past 15 years have typically sought to increase maternity leave entitlements, although the trend seems unlikely to continue except for specific situations and cases where an increase over the basic or minimum maternity leave can be justified.12 For this there are two major interrelated reasons.
The first follows from the aim, recognized at both international and national levels, of achieving real equality between men and women in the workplace and in society. This is all the more important given the proportion of the active working population in many countries made up of women of child-bearing age, particularly -- although not exclusively -- in the industrialized countries. That proportion has grown constantly during recent decades. In France, more than half of all births recorded in 1977 were to women wage-earners (380,000 out of 750,000).13 In Switzerland, it is estimated that of about 81,000 recorded births each year, 54,000 are to mothers in paid employment.14 Between 1985 and 1993, the employment of women with children under ten years of age increased more rapidly than the employment of women in general in all the countries of the European Union except Denmark.15 These few figures also explain why business and political leaders concerned by the problem of an ageing population are increasingly looking at ways of reconciling work and the family responsibilities associated with motherhood.16 They highlight the widely acknowledged need for measures which recognize the biological role of women in conceiving and giving birth to children to prevent that role from becoming a source of discrimination against them in matters of employment. Nevertheless, that unalterable biological difference between men and women, which is the basis of maternity leave and the associated employment protection measures for pregnant workers and those who have just had a child, must not be used to justify excessively protective measures which might act against women's interests. The danger of this happening is greater if the period of maternity leave is very long and thus compounds the organizational problems created by a worker's absence, particularly in small enterprises where many women wage-earners are employed. The biological role of women in procreation must be protected, but we must steer clear of overprotection with its potentially adverse consequences. For this reason, the constraints associated with that biological role, which affects only a limited period of a woman's working life, should be differentiated from the tasks of raising and caring for children, which can be shared by men and women17 and for which parental leave, discussed in a later chapter, has been instituted.
The second reason is connected with the availability of child-care facilities. Maternity leave should not be a substitute for such services. Care must be taken not to compensate for a lack of child-care facilities by increasing maternity leave beyond reasonable limits to the detriment of a woman's chances of resuming an active life after a period of maternity leave and playing an effective part in an enterprise and in the economy generally.
Allocation and nature of leave before and after the birth
The proportions of the leave taken before and after the birth and their respective minimum or compulsory lengths determine both the actual leave period, in particular in the event of a discrepancy between the expected and actual dates of confinement, and the freedom available to a woman in arranging her maternity leave. Table 2 draws together the general statutory provisions applicable in various countries. The length of the prenatal portion of leave is established with reference to the presumed date of confinement. Normally, if confinement starts earlier than expected and legislation specifies the minimum total maternity leave allowance, the postnatal portion of the leave is extended by a period equivalent to the interval elapsing between the expected and actual dates of confinement.
As can be seen from table 2, a compulsory period of postnatal leave is stipulated by legislation in many countries, in accordance with Convention No. 103. The length of this leave is 6 weeks in Australia (Victoria), Bangladesh, Belize, Botswana, Burundi, Canada (Alberta and British Columbia), Central African Republic, Colombia, Democratic Republic of the Congo, Dominica, Dominican Republic, El Salvador, Fiji (public officials), France, Haiti, Honduras, Hun-gary, India, Jordan, Lesotho, Madagascar, Mauritania, Mauritius, Morocco, Niger, Nigeria, Norway, Pakistan, Paraguay, Rwanda, Saudi Arabia, Senegal, Seychelles, Solomon Islands, Spain, United Republic of Tanzania, Togo, Turkey and Uruguay. The compulsory period of postnatal leave is more than six weeks in some countries where the total maternity leave period exceeds (sometimes substantially) 12 weeks. This is the case in Cyprus (seven weeks); Austria, Belgium, Brazil, Chad, Gabon, Germany, Guinea, Japan, Luxembourg, Netherlands, Nicaragua, Panama, and South Africa (eight weeks); and Viet Nam (two months). In Switzerland, the prohibition of employment, which applies only to the postnatal period, is also eight weeks. The period is ten weeks in Ecuador, 12 weeks in Chile and three months in Costa Rica. On the other hand, the compulsory period of postnatal leave in some countries is less than six weeks: two weeks in Denmark and the United Kingdom, four weeks in Bahamas, Mali, Singapore, Sri Lanka and Uganda, and 30 days in Guinea-Bissau, Lebanon, Libyan Arab Jamahiriya, Sao Tome and Principe.
Mandatory prenatal leave:
1 month or less
Belgium, Fiji (7 days); Cyprus, Ecuador, France, Madagascar, Mauritania, Seychelles, Zimbabwe (2 weeks); Mali (3 weeks); Brazil, Croatia, Honduras, Nicaragua, Senegal, Slovenia, South Africa (4 weeks); Costa Rica (1 month).
6 weeks or more
Australia,1 Chile, Dominican Republic, Germany, Guinea, Haiti, Panama, Turkey, Venezuela (6 weeks); Argentina (45 days); Austria (8 weeks); Italy (2 months).
Mandatory postnatal leave:
Less than 6 weeks
Denmark, United Kingdom (2 weeks); Mali, Singapore, Sri Lanka, Uganda (4 weeks); Guinea-Bissau, Lebanon, Libyan Arab Jamahiriya, Sao Tome and Principe (30 days); Egypt, Syrian Arab Republic (40 days).
Australia, 2 Bangladesh, Belize, Botswana, Burundi, Canada,3 Central African Republic, Colombia, Democratic Republic of the Congo, Dominica, Dominican Republic, El Salvador, Fiji,4 France, Haiti, Honduras, Hungary, India, Jordan, Lesotho, Madagascar, Mauritania, Mauritius, Morocco, Niger, Nigeria, Norway, Pakistan, Paraguay, Rwanda, Saudi Arabia, Senegal, Seychelles, Solomon Islands, Spain, United Republic of Tanzania, Togo, Turkey, Uruguay.
6 weeks or more
Angola, Argentina, Peru (45 days); Cyprus (7 weeks); Austria, Belgium, Brazil, Chad, Gabon, Germany, Guinea, Japan, Luxembourg, Netherlands, Nicaragua, Panama, South Africa, Switzerland (8 weeks); Portugal, Viet Nam (2 months); Ecuador (10 weeks); Chile, Venezuela (12 weeks); Costa Rica, Italy (3 months); Croatia (6 months).
1 For federal public servants and in the states of South Australia and Western Australia. 2 In the state of Victoria. 3 In the provinces of Alberta and British Columbia. 4 For public servants
A period of prenatal leave is also compulsory in certain countries. The purpose of this is to allow a woman to rest and avoid working until the last minute, even if her own preference is for postnatal leave as a way of maximizing her period of rest after the birth. The statutory length of such leave varies from one country to another: one week in Belgium and Fiji, two weeks in Cyprus, Ecuador, France, Madagascar, Mauritania, Seychelles and Zimbabwe, three weeks in Mali, four weeks in Brazil, Honduras, Senegal, Slovenia and South Africa, one month in Costa Rica, six weeks in Australia (public servants in Western Australia and South Australia), Chile, Dominican Republic, Germany, Guinea, Haiti, Panama, Turkey and Venezuela. The statutory prenatal leave may be increased by negotiations between the social partners. For example, in Denmark in the public sector, women can take leave from eight weeks before the confinement, rather than the statutory four weeks.18
Two things are clear from these examples. One is that compulsory prenatal leave is far less common than compulsory postnatal leave. The second is that, where there is an entitlement to prenatal leave, its length is limited and in any event substantially less than that of compulsory postnatal leave. This corresponds to what women themselves expect but does not necessarily address the concerns of medical experts to prevent premature births 19 which can cause serious handicaps and thus create a heavy financial burden for the mother and family, for health care schemes and for society as a whole. The question is thus how to satisfy medical requirements without ignoring women's own wishes and preferences which are increasingly reflected in national legislation and practice allowing women to choose, at least within certain limits, how to arrange their prenatal and postnatal leave. Thus in Peru, the possibility of carrying over all or part of the prenatal leave and using it after the confinement is subject to two conditions: the worker must notify her employer of her intention and must provide a medical certificate stating that she is in a fit condition to do so. Along the same general lines but in a different way, the law governing maternity in New Zealand establishes the standard maximum prenatal leave of six weeks and leaves it to the employee and the employer together to decide when the leave period should begin, although the employer has the right to decide that the leave should start more than six weeks before the expected date of confinement if the woman is unable to do her work without risk to herself or others. Directive 92/85/EEC does no more than stipulate a compulsory leave period of two weeks which may be allocated before and/or after confinement, giving each country considerable freedom to determine the way the leave is allocated. Specifying a minimum period of leave also helps to ensure that various pressures relating to the woman's financial situation, her position in the company or the state of the enterprise itself do not adversely affect her health.
Extension of leave
Under the terms of Convention No. 103, maternity leave must be extended in either of two cases: when confinement begins after the expected date, in which case the prenatal portion of the leave must be extended up until the actual date of confinement without any reduction in the compulsory postnatal leave; and in the event of illness arising as a result of the pregnancy or confinement, the maximum length of the leave then being determined by the competent authority.
Specific provisions for these two types of extension of maternity leave exist in a number of countries. The first type of extension is found in Angola, Barbados, Belgium, Brazil, Burkina Faso, Cameroon, Chile, Cuba, Ethiopia, Germany, Greece, Guinea, Guinea-Bissau, Haiti, Ireland, Italy, Japan, Lesotho, Luxembourg, Mali, Malta, Mongolia, Nicaragua, Panama, Peru, Romania, Solomon Islands, Somalia, Swaziland, Venezuela and Zimbabwe. The length of the extension depends on the period elapsing between the presumed and actual (delayed) dates of confinement. On the other hand, extension of leave for reasons of illness is more common (see table 3). The length of such an extension varies from two weeks (most commonly) to a possible three months or even longer and is not necessarily specified or limited, given the difficulty of predicting the nature of possible complications and the period of rest required. The distinction between leave in the event of illness resulting from pregnancy or confinement and sick leave also appears to be blurred. In a number of countries (Antigua and Barbuda, Argentina, Eritrea, Malta, Philippines, Sudan and Zambia), maternity leave is extended as sick leave.
Table 3 also shows the information available on extensions of maternity leave provided for by the national legislation of various countries under other circumstances, for example in cases of multiple births. Provision is sometimes made for other types of extension, for example if the mother is still nursing, if the working conditions are prejudicial to the health of the mother or child (if, for example, the mother cannot be transferred to other duties compatible with her condition), or if the child is ill (six months in Argentina if the child is afflicted with Down's syndrome). In New Zealand, in the absence of any specific provision to the contrary, special leave of ten days may be taken by the expectant mother during the period before the birth and the start of actual maternity leave.
Complications or illness:
Less than 1 month
Afghanistan, Armenia, Azerbaijan, Belarus, Botswana (further extension possible), Burkina Faso, Central African Republic, Chad, Comoros, Congo, Côte d'Ivoire, Djibouti, Estonia, Gabon, Ghana, Lesotho, Madagascar, Mali, Mauritania, Mongolia, Morocco, Niger, Philippines, Russian Federation, Senegal, Togo, Tunisia, Ukraine.
1 to 3 months
Argentina, Bahamas, Barbados, Brazil, Cameroon, Costa Rica, Fiji, France, Grenada, Guatemala, Guinea, Guyana, Honduras, India, Indonesia, Israel, Lao People's Democratic Republic, Libyan Arab Jamahiriya, Malta, Papua New Guinea, Portugal, Swaziland, Thailand (unpaid), Uganda (unpaid), United Kingdom.
More than 3 months
Ecuador (unpaid), Iraq, Jamaica (further 3 weeks possible), Kuwait (unpaid), Netherlands, Syrian Arab Republic (including maternity leave), United Arab Emirates (unpaid).
As long as necessary
Chile, El Salvador, Honduras (unpaid), Mexico, Solomon Islands, Venezuela.
Antigua and Barbuda, Belize, Benin, Bolivia, Dominican Republic (unpaid), Equatorial Guinea, Eritrea, Italy, New Zealand, Nigeria, Norway, Panama, Paraguay, Philippines, Seychelles, Sudan, Zambia, Zimbabwe (unpaid).
Less than 1 month
Afghanistan, Azerbaijan, Belarus, China, Estonia, Georgia, Ghana, Guinea, Islamic Republic of Iran, Israel, Norway,* Spain, Ukraine, Yemen.
1 to 2 months
Armenia, Austria, Cuba, Germany, Iceland,* Japan, Luxembourg, Mongolia, Russian Federation, Viet Nam.*
More than 2 months
Czech Republic, Finland,* France, Iraq, Poland, Sweden.*
* Per additional child.
In several countries, legislation includes provisions for dealing with particular problems and situations, such as the hospitalization or death of a newborn baby or its mother following the birth.
In the following countries, maternity leave can be interrupted or deferred, allowing the mother to use it when the child leaves hospital: Belgium (if the child has been in hospital for more than eight weeks after its birth), Guinea-Bissau, Hungary, Israel, Poland, Portugal and Sao Tome and Principe. In addition, special provisions sometimes apply if the child dies after birth. This is the case in Angola, where maternity leave is terminated by the death of a newborn baby before the normal end of the leave period and the worker is required to resume work six days after the death if it occurs after the compulsory postnatal leave period of 45 days. Maternity leave may also be reduced if the child is stillborn or dies: this is the case in Bulgaria, Grenada (if the death occurs during the month following the birth), Haiti, Honduras, Hungary, Israel (if the woman agrees) and Portugal.
An employed father may take any unused maternity leave if the mother is hospitalized or dies following childbirth, as in Belgium, Bulgaria, Chile, Croatia, France, Ireland, Italy, Portugal, Russian Federation, Slovenia and Spain. In Portugal, a father may use the maternity leave, except for the mandatory two weeks of postnatal leave, if both parents agree.
The preceding analysis confirms the importance of maternity leave. Seen as the most essential means of safeguarding the health of the mother, unborn child and newborn baby, it remains the key element in the protection of women who continue to work during pregnancy. This role is universally acknowledged and firmly established as can be seen from the fact that all the countries examined here have adopted statutory provisions for maternity leave, even those countries where other types of leave and conditions of employment are normally negotiated by the social partners. The partners still have a very important part to play in increasing maternity leave entitlement, especially where it is relatively short, and even more in increasing women's disposable income during maternity leave.
Over the years, major changes have taken place in many countries reflecting changes in the role and image of women at work and in society and in women's own expectations. Whatever reservations may have been expressed during the debates which have shaken up the world of employment over the past two decades on ways of guaranteeing real equality of opportunity and treatment for men and women and protective measures applicable exclusively to women, the role of maternity leave has become at once clearer and more complex.
What has become clearer is the importance of maternity leave in enabling women to reconcile their unique biological role and their wage-earning activity. After all, how, given that unique role, could one speak of equality between men and women without guaranteeing their right to interrupt their paid work for the birth of a child and return to work afterwards?
The greater complexity becomes apparent from the measures adopted to ensure that family responsibilities, as opposed to the physiological demands associated with the birth or adoption of a child, are not borne exclusively by women or at least are made less onerous than at present. The complexity is also evident from the links between these measures. That is why maternity leave, or the portion of parental leave provided for in various countries following the birth and reserved in some cases for the mother, should not exceed certain limits. This requires social infrastructures in the form of child-care facilities while parents are at work. Nevertheless, the complexity of the different provisions which address these concerns is sometimes more apparent than real and another factor is gradually becoming clearer, namely, greater flexibility based on the needs and preferences both of the women wage-earners and employers.
1 Article 1.
2 Council Directive 92/85/EEC of 19 October 1992 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 breast-feeding, in Official Journal of the European Communities, (Brussels, 28 November 1992), Vol. 35, No. L348, pp. 1-7. Article 2 of the Directive defines the pregnant worker as "a pregnant worker who informs her employer of her condition, in accordance with national legislation and/or national practice".
3 Government reply to request for information by the Office in 1997.
4 Office fédéral des assurances sociales (OFAS): Assurance maternité: Message, Documents relating to the decision of the Conseil fédéral of 25 June 1997 (30 June 1997).
5 S. Prechal and L. Senden: Implementation of Directive 92/85 (Pregnant workers), Special Report 1995 of the Network of Experts on the Implementation of the Equality Directives, document No. V/1717/96-EN (Brussels, European Commission, October 1996).
6 Regulation of Wages (Building and Construction Industry) Order 1994, Legal Notice No. 70, dated 1 March 1994 in: Kenya Gazette, No. 11, Supplement, 4 March 1994, pp. 506-521.
7 "Maternity arrangements '95: Part 1", in Equal Opportunities Review (London, September/October 1995).
8 Up to 28.5 weeks after 20 years of service, which obviously reduces the scope in practice. OFAS, op. cit.
9 Code des obligations, section 324a (2) and (3).
10 ILO: "Maternity Protection", in the Report of the Committee of Experts on the Application of Conventions and Recommendations, Report III (Part IV), International Labour Conference, 49th Session (Geneva, 1965), pp. 179-289.
12 The limit of 16 weeks reached or exceeded in 27 of the 152 countries examined appears to be an objective that is hard to surpass.
13 P. Cabanes: Maternité et travail, Report submitted to the Minister of Labour and Participation and to the Secretary of State for Women's Employment (Paris, April 1979).
14 OFAS, op. cit.
15 P. Moss: Labour Market Trends: Parental employment in the European Union, 1985-1993 (London, December 1996).
16 See: Leave arrangements for workers with children: A review of leave arrangements in the Member States of the European Union and Austria, Finland, Norway and Sweden, document No. V/773/94-EN (Brussels, January 1994).
17 C. Paoli: "Women workers and maternity: Some examples from Western Europe", in International Labour Review (Geneva, ILO), Vol. 121, No. 1, 1982, pp. 1-16.
18 Ministry of Labour: Equality at work, June 1996.
19 In France, the report on "Maternité et travail" of 1979, already cited, recommended an extension of prenatal leave.
A guarantee for pregnant women and young mothers that they will not lose their job as a result of being pregnant, absent on maternity leave or because they have just had a child, is an essential element in maternity protection. Such a guarantee is an integral part of their entitlement to paid maternity leave. It is also an essential means of preventing maternity from becoming a source of discrimination against women in matters of employment. For this we need to ensure that the absence of the woman on maternity leave should have no adverse effects on her resumption and continuation of work at the end of her period of leave or on her entitlements under the employment contract, in particular those linked to seniority within the company (such as paid annual leave) or to length of service (such as retirement benefits).
Convention No. 103, like Convention No. 3 before it, absolutely prohibits dismissal of a worker during maternity leave or during any extension of such leave that may be necessitated by illness resulting from pregnancy or confinement.1 The protection this provides is considerable, since it prohibits dismissal even under exceptional circumstances.2 At the same time, the protection is limited, since it only covers the period during which the woman is on maternity leave, i.e. twelve weeks according to these Conventions, and during any extension of that leave. On the other hand, the Maternity Protection Recommendation, 1952 (No. 95), allows the possibility of extending protection against dismissal from the date when the employer has been notified of the pregnancy until at least one month after the end of the maternity leave.3
Nevertheless, neither Convention No. 103 nor Recommendation No. 95, which concern only the protection of women who are already employed, apply to the case of a woman seeking employment, which is undoubtedly the most important from the point of view of equality of opportunity and treatment between men and women. It is also the most difficult, since motherhood and the family responsibilities associated with it still strongly influence the image of women at work and may be used by employers as a criterion when selecting candidates for a particular post. The question is how to ensure that employers do not reject candidates of child-bearing age, who still bear the heaviest burden of family responsibilities and whose absence on maternity leave or for even longer periods of parental leave creates organizational problems for employers and in some cases also the financial burden of paying salaries during such leave of absence. These questions are all the more difficult in that they relate to a worker's private life and to ways of protecting it and reconciling it with the demands of working life. The importance of these issues, which have only recently received serious attention, has not escaped legislators and social partners in different countries. In 1997, the ILO adopted and published a code of practice on the protection of workers' personal data which stipulates that the processing of personal data should not have the effect of the unlawful discrimination in employment or occupation4 dealt with in the Discrimination (Employment and Occupation) Convention, 1958 (No. 111). This Convention plays a major part in promoting equality and aims to guarantee that every job application should be considered fairly, without discrimination based on various criteria such as sex, civil or marital status, family situation, pregnancy or confinement. The code, when read in conjunction with the Convention, sheds new light on the discrimination which would result, for example, if candidates were asked at the time of recruitment whether or not they were pregnant.
Protection against dismissal
Absolute prohibition against dismissal during maternity leave
An absolute prohibition against dismissal of a worker during pregnancy leave -- or to give notice of dismissal during that leave -- is found in the legislation of a certain number of countries and reflects the provisions of Convention No. 103. While it is not possible here to go into an exhaustive analysis of the relevant case law in different countries which alone would give a true idea of the scope of statutory provisions, such a prohibition appears to apply in the following countries: Bahrain, Belize, Benin, Botswana, Burkina Faso, Burundi, Cambodia, Chad, Congo, Côte d'Ivoire, Djibouti, Fiji, Gabon, Ghana, India, Israel, Lesotho, Libyan Arab Jamahiriya, Madagascar, Mali, Mauritania, Morocco, Niger, Nigeria, Senegal, Solomon Islands, Sri Lanka, Uganda and Uruguay.
In addition to this prohibition against the dismissal of a worker during maternity leave, a number of countries have adopted provisions which extend protection from dismissal beyond the period of absence on maternity leave, i.e. the period of pregnancy, for a certain period following a worker's return to work. It should be remembered that the prohibition against dismissal of a worker during maternity leave, even if it is absolute, provides only a limited protection: it provides no protection against dismissal during pregnancy, or, for example, following the worker's return to work after a period of maternity leave.
Prohibition against dismissal for reasons connected to maternity
The protection against dismissal under Convention No. 103 appears to be one of the elements in maternity protection which have been subject to most modifications in member States where the protection provided in this area diverges increasingly from the spirit of the Convention. There are two reasons for this. The first is historical and is based on the fact that Convention No. 103 was adopted more than four decades ago at a time when protection of workers as a group from dismissal was still undeveloped and applied only to particular categories regarded as especially "at risk" and in need of special guarantees, such as women on maternity leave or trade union representatives. The second reason, which at the time was not clearly articulated, is closely connected to a growing insistence that maternity protection is a precondition of genuine equality of opportunity and treatment for men and women.5 Two examples illustrate these developments. One is the adoption by the International Labour Conference in 1982 of the Termination of Employment Convention, 1982 (No. 158). Before that date, the question had only been addressed by a Recommendation adopted in 1963, 11 years after the adoption of Convention No. 103.6 The other concerns developments in British legislation as a result of amendments introduced in 1994, particularly following European Directive 92/85. These amendments constitute a fundamental change in the legal approach not only towards protection against dismissal but also to the question of what constitutes sex discrimination. Since those amendments were made, any dismissal of a woman in the United Kingdom for reasons connected with pregnancy has been regarded as wrongful and dismissal of a woman merely because she is pregnant now also appears to constitute discriminatory treatment based on sex, without any requirement for comparison with a man, as had been the case in the past.7
Over the years, national legislation and practice, in particular under the influence of case law, have evolved in many countries so as to extend security of employment during maternity leave to encompass a broader protection covering pregnancy and the period following the birth. This has also altered the character of the protection given, which has lost its absolute character and, in accordance with general provisions governing termination of employment, allows dismissal for reasons regarded as legitimate and unconnected with maternity, such as misconduct or failure on the part of the worker to honour obligations under the employment contract, cessation of activity by the enterprise, force majeure, normal expiry of the employment contract or completion of the work for which the worker was recruited.
Countries which allow dismissal for reasons regarded as legitimate and not connected to maternity include the following: Austria, Belarus, China, Ecuador, El Salvador, France, Hungary, Indonesia, Italy, Republic of Korea, Liechtenstein, Madagascar, Malaysia, Malta, Mozambique, Namibia, Netherlands, New Zealand, Pakistan, Panama, Poland, Romania, Russian Federation, Saudi Arabia, Singapore, Swaziland, Sweden, Syrian Arab Republic, Venezuela and Viet Nam. It is thus an established principle, formulated in a variety of ways, in many countries that a woman who is pregnant, absent on maternity leave or has resumed work after a period of maternity leave can be dismissed only for a valid reason not connected with her condition, absence on leave, or the fact that she is nursing a child or is a young mother. This is the approach adopted in Convention No. 158, according to which pregnancy, absence from work during maternity leave and family responsibilities do not constitute valid reasons for dismissal.8 The European Directive 92/85 for its part calls on Member States of the European Union to take the necessary measures to prohibit dismissal of workers during the period from the beginning of their pregnancy to the end of the maternity leave, "save in exceptional cases not connected with their condition".9
If protection against dismissal is to be effective, it must also cover the period following the worker's return to work. This protection is the subject of special provisions in different countries, and the actual period of protection varies considerably. In China, Haiti and Romania, the period of protection corresponds to the nursing period, which is not precisely defined. The period of protection is 30 days following maternity leave in Belgium and the Republic of Korea, 12 weeks following the birth in Côte d'Ivoire and Luxembourg, three months following the end of maternity leave in Cyprus, 16 weeks following the birth in Switzerland, four months following the birth in Austria, Ethiopia and Germany, five months in Brazil, six months in Hungary, nine months in the Lao People's Democratic Republic, one year following the birth in Afghanistan, Angola, Bolivia, Greece, Mozambique, Somalia, Venezuela and Viet Nam, and 15 months in Mali and Senegal. The period is two years in Mongolia and three years in Belarus and Ukraine. In other countries, protection from dismissal during the period following the worker's return to work after a period of maternity leave is justified on grounds of family responsibilities, which do not constitute a valid reason for dismissal under the terms of Convention No. 158.
Statutory protection is obviously one aspect of the problem. The real issue here, as always in matters of termination of employment, is to ensure in practice that a woman may only be dismissed for a reason not connected with pregnancy, maternity leave or for having a young child. Labour courts have a crucial part to play in ensuring that statutory provisions are respected and in assessing the validity of reasons given by employers and their possible connection with maternity. Disputes appear to be common.10
Labour courts are a last resort and various other means exist to ensure that protection from dismissal is actually implemented. These most commonly include provisions obliging the employer to state in writing the reasons for the dismissal, as required by the European Directive 92/85 and the national legislation of most member States of the European Union; placing the onus of proof on the employer; and an obligation to notify or request prior permission from the competent authority (works inspectorate or works council or committee). That is the case in Colombia, where dismissal may be authorized only for reasons set out in the Labour Code. In Guatemala, authorization must be given by an industrial tribunal, in Chile by a judge and in Israel by the Ministry of Labour. Following amendments to legislation in Portugal in 1995, dismissal of a pregnant woman or a woman who has just given birth to a child are subject to the approval of the Commission for Equality in Employment and Occupation, a tripartite body under the Ministry of Employment and Social Security which must give its decision within 30 days of the case being submitted. Protection may also involve deterrent measures. In Ireland, for example, where dismissal connected with pregnancy, confinement or nursing constitutes wrongful dismissal and is prohibited, severe statutory penalties exist and the worker concerned may be reinstated or awarded compensation amounting to two years' gross salary.
In Belgium, in the event of unlawful dismissal, a special lump sum equivalent to six months' gross salary is paid, in addition to severance pay. In Finland, compensation for wrongful dismissal may be as much as 24 months' gross salary. In Sweden, dismissal on grounds of pregnancy may also constitute discriminatory dismissal prohibited by legislation on equality between men and women.11
Finally, in certain countries legislation protects women from any wrongful dismissal connected with maternity by expressly stipulating that a worker may not be dismissed for reasons of reduced productivity during pregnancy. This is the case in Greece and Honduras.
In conclusion, it is clear that cases of dismissal do occur and that consideration must therefore be given to the effects of dismissal for legitimate reasons such as the bankruptcy or cessation of activity of an enterprise, or serious misconduct by the worker just before or during the period of maternity leave.12 A distinction must be drawn here between the situation of a woman who meets the conditions of eligibility for maternity benefits under a social security or insurance scheme and that of a woman who is not eligible or not covered by such a scheme, either because she is excluded for some reason or because no such scheme exists and any leave benefits are paid by the employer. In the first case, dismissal will normally have no effect on the payment of benefits which the worker will receive during her leave. The second situation appears more precarious. Nevertheless, provisions exist in certain countries to ensure that the worker's wages continue to be paid. Thus, in Botswana, legislation stipulates that the dismissal does not affect the employer's obligation to continue payment of wages.
Entitlements under the employment contract
As is the case with any justified leave of absence, the right of a worker to reinstatement in her former work or "equivalent work paid at the same rate"13 is of crucial importance for a woman wage-earner who has just had a child. This right is all the more important given that the traditional pattern, according to which women stop work after the birth of their children in order to care for them and return to work once that task is finished, is increasingly outdated. Investigations have shown that a growing number of women are returning to work immediately after the birth of a child. In 1988 in the United Kingdom, for example, this was the case with 45 per cent of women who had worked during pregnancy.14 According to a more recent study of mothers of newborn babies which aimed to measure the effects of reforms in statutory maternity protection in 1994, 92 per cent of the women intended to return to work after their maternity leave.15 In Finland, the Netherlands and Sweden, the majority of people entitled to parental leave -- mainly women -- return to work after the period of leave.16 The situation varies according to the country, the proportion of women who are wage-earners and the number of children, and also according to the availability of child-care services, part-time work opportunities or other ways of reconciling work and family responsibilities. For example, the proportion of women returning to work after the birth of a child is 50 per cent in Germany and Spain, 33 per cent in Austria, 78 per cent in Italy and 80 per cent in France.17 In Germany in 1987, that proportion was 80 per cent for single mothers and two-thirds for mothers bringing up two children. Whatever the actual proportion of women returning to work following the birth of a child, it appears to be growing everywhere.
National legislation in a number of countries also takes account of cases of mothers who for one reason or another do not wish to return to work, or are unable to do so because existing child-care facilities are inadequate (for example), by allowing them to resign without notice during pregnancy or during the nursing period.18 This is the case in several French-speaking countries of Africa (Benin, Burkina Faso, Cameroon, Central African Republic, Congo, Côte d'Ivoire, Democratic Republic of the Congo, Djibouti, Gabon, Madagascar, Mali,19 Niger, Rwanda and Senegal20). Such provisions may be useful to women wage-earners who wish to take a break from paid employment but this is not the main problem facing them in this area. Of much greater importance is effective protection against termination of employment by the employer.
Reinstatement of a worker in her former work
The right of a woman to return to her work after a period of maternity leave is usually implicit in the leave entitlement itself, since the interruption is of a temporary nature no different from annual leave which does not require specific statutory provisions, although such provisions are found in the legislation of several countries (for example, Comoros and Mali). Elsewhere, the right of a woman to return to her former work in the enterprise is stated explicitly. This is the case in Bolivia, Brazil, Colombia, Cuba, Dominica, Ireland and Mongolia. In Mexico and Spain, the worker's post is reserved for her for one year following the birth of a child. In France, a woman's right to return to her previous work is expressly guaranteed if she has to be transferred to other work during pregnancy. In Afghanistan, Bahamas, Barbados, Finland, Luxembourg, Malta and Swaziland, the woman has the right to return to her own post or an equivalent post. In Costa Rica, the woman can be reinstated in her previous work or in a position suited to her capacity and competence, provided that the remuneration in the latter case is identical.
The right to reinstatement in the post held before maternity leave recognized by British legislation is subject to certain exemptions. One concerns the case of small enterprises employing five workers or less, if it is not reasonably possible to allow the worker to return to her post or to offer alternative work under conditions not less favourable than those which would have applied had she not taken maternity leave. The other possible exemption applies when the employer cannot allow the worker concerned to resume her post because of a surplus of staff. Any suitable vacancy must be offered to the worker concerned. A new contract is then drawn up, provided that the post is suited to the employee and her capabilities and the conditions of employment are not significantly less favourable than those which would have applied in the case of a normal reinstatement to the original post.
In many countries, the worker's reinstatement in her former work is automatic and she resumes her post at the end of her maternity leave. The entitlement may also be subject to certain formalities, such as prior notification, as in Grenada and Ireland.
In the absence of relevant statutory provisions, such formalities are sometimes defined in collective agreements. In the Bahamas, for example, a collective agreement covering the hotel and catering trade stipulates that the employer must be notified of the worker's intention to return to work within six months following the birth; failure by the worker to give such notification may be interpreted by the employer as meaning that she does not intend to resume work and gives the employer the right to terminate the employment. In certain cases, the right to resume work is subject to a medical certificate stating that the worker is fit to do so. A return to work following a longer period of absence, such as a period of parental leave, is sometimes subject to a longer period of notice.
However, not all women wage-earners enjoy the right of reinstatement in their former work. In the United States, the Family and Medical Leave Act allows an employer to refuse to reinstate certain high-salaried employees if this is deemed necessary to prevent serious economic prejudice to his activities. As noted in the case of the United Kingdom, even where a worker's right to return to her former work or equivalent work is expressly guaranteed, there may be exemptions which limit the practical scope of the provisions.
Other entitlements under the employment contract
Whatever the importance of a woman wage-earner's right to be reinstated in her previous work, and however effectively it may be recognized and applied, it is not in itself enough to prevent women's procreative role from becoming an obstacle to the realisation of equality of opportunity and treatment. For this, it must be ensured that a woman's absence on maternity leave and the extension of that leave does not result in the loss or reduction of entitlements and benefits under the terms of the employment contract, which would only exacerbate the often considerable differences between men and women wage-earners. Clearly, much remains to be done to achieve that goal, despite the measures already taken to make maternity leave count for the purpose of calculating seniority entitlements or other entitlements under the employment contract.
In many of the countries examined, maternity leave counts for the purpose of calculating employment benefits. This is the case, for example, in Costa Rica, Honduras, Jamaica, Madagascar and Portugal. In other countries, such as Belarus, France, Mexico, Nicaragua and Spain, specific provisions exist to ensure that maternity leave is counted for the purpose of calculating seniority entitlements. Some countries have adopted very detailed provisions in this respect. In Namibia, for example, the Labour Law of 1992 stipulates that a woman wage-earner does not lose any entitlements under her employment contract which were recognized on the day of her departure on maternity leave, whether those entitlements are linked to seniority, promotion criteria, or the benefits for which she was eligible under the terms of a medical or retirements scheme or fund.
In Algeria, Côte d'Ivoire, Hungary and the Russian Federation, legislation stipulates that maternity leave must be included in the length of service used to determine both paid annual leave entitlement and the length of that leave. Under legislation in Madagascar, absence on maternity leave cannot be deducted from annual leave. In some cases, collective agreements fill any gaps left by legislation or step in to define the effect -- or non-effect -- of the legislation on employment entitlements. This is the case in Ghana with a 1995 collective agreement on pay increases for workers in commerce.
While entitlements linked to seniority, such as paid annual leave, appear to be widely recognised and guaranteed, the same clearly does not apply when it comes to certain other, no less important aspects, that are far more complex in not being automatically linked to seniority such as access to training and career development. It is unquestionably in these areas that women wage-earners are most disadvantaged by comparison with their male counterparts.
The preceding analysis highlights the general trends in national legislation and practice in the protection of women wage-earners against dismissal in relation to the standards established under Convention No. 103. The general trend is towards a broader protection covering not only a worker's absence on maternity leave but starting from the beginning of her pregnancy and including the period following her return to work when she must fulfil family responsibilities. On the other hand, this protection is also relative, since it is possible, within the terms established under the provisions governing general protection against dimissal, to dismiss a woman employee for reasons not connected with maternity. This is where the difficulties begin, since it is no simple matter to ascertain that the dismissal is genuinely unconnected with the woman's procreative role. It is a task that concerns employers, woman employees, their representative organizations, legislators and judiciaries in every country.
More difficult still is the task of ensuring, as indicated at the beginning of this chapter, that maternity does not become an obstacle to recruitment for the growing number of women who are obliged or wish to reconcile motherhood with paid employment. This is increasingly a matter for those working for equality between men and women at work and in society. A growing number of countries, especially the industrialized countries, are adopting measures to prevent any discrimination at the time of recruitment by prohibiting any action by employers aimed at ascertaining whether a candidate is pregnant. Nevertheless, much remains to be done if this laudable objective is to be achieved without indirectly harming the employment prospects of women of child-bearing age.
1 Article 6 of Convention No. 103 (Article 4 of Convention No. 3): it is unlawful for the employer to give the woman notice of dismissal during her absence on maternity leave or to give her notice of dismissal "at such a time that the notice would expire" during such absence.
2 It is worth noting, as the Committee of Experts on the Application of Conventions and Recommendations did in 1965 when it examined national legislation and practice in matters of maternity protection, that the prohibition does not "oblige an employer terminating his activity or an employer detecting a serious fault on the part of one of his women employees to maintain the employment contract of a woman worker who is pregnant or confined, despite reasons justifying dismissal, but merely to extend the legal period of notice to the maximum by means of a supplementary period equal to the time required to complete the period of protection ...".
3 Paragraph 4(1).
4 Paragraph 5(10).
5 For a recent analysis of national legislation and practice in matters of equality of employment and occupation, see ILO: Equality in Employment and Occupation, Report III (Part 4B), International Labour Conference, 83rd Session (Geneva, 1996).
6 Termination of Employment Recommendation, 1963 (No. 119).
7 Case Webb v. EMO Aircargo (UK) Ltd., 1994, IRLR 482. At the time of writing, the case had yet to be reviewed by the British courts to which it was to be referred.
8 Article 5(d) and (e). The Committee of Experts on the Application of Conventions and Recommendations in 1995 conducted a study on the application of this Convention and of the Termination of Employment Recommendation, 1982 (No. 166) which complements it. ILO: Protection against unjustified dismissal, Report III (Part 4B), International Labour Conference, 82nd Session (Geneva, 1995).
9 Article 10.1.
10 As noted in Chapter 1, in the United Kingdom, where cases relating to pregnancy and maternity leave account for the greatest number of inquiries received by the Equal Opportunities Commission, more than one in eight concerns dismissals.
11 S. Prechal and L. Senden: Implementation of Directive 92/85 (pregnant workers), Special Report 1995 of the Network of Experts on the Implementation of the Equality Directives, document no. V/1717/96-EN (Brussels, European Commission, October 1996).
12 The situation of women wage-earners who become unemployed is covered at international level by the Employment Promotion and Protection against Unemployment Convention, 1988 (No. 168), and Recommendation No. 176 which supplements it.
13 Recommendation No. 95, Paragraph 4(3).
14 C. Callender, N. Millward, S. Lissenburgh and J. Forth: Maternity rights and benefits in Britain, 1996 (London, Policies Studies Institute, 1997), p. 101.
15 ibid., p. 61.
16 OECD: "Le congé parental de longue durée dans les pays de l'OCDE", in Perspectives de l'emploi, Ch. 5 (Paris, July 1995).
17 ibid., p. 202; M.-J. Saurel-Cubizolles: Reprise du travail après la naissance d'un enfant et santé des femmes, Rapport de synthèse, juin 1996 (Villejuif, Unité de Recherches épidémiologiques sur la Santé des Femmes et des Enfants, 1996), p. 28.
18 And without any liability to compensation for breach of the employment contract.
19 With 24 hours' notice.
20 In Djibouti and Madagascar this is permitted for 15 months following the birth.
Striking progress has been achieved in providing paid maternity leave to employed women since the member States of the ILO adopted the first Maternity Protection Convention in 1919. At that time, only nine of the 29 countries which had instituted compulsory maternity leave provided payment of allowances through some kind of insurance scheme. By 1952, some 40 countries had compulsory social insurance laws providing maternity benefits. Today, more than 100 countries worldwide recognize a woman's right to paid maternity leave and accordingly guarantee the provision of social security benefits before and after childbirth.
This chapter focuses on the main trends observed in the provision of cash and medical benefits in recent years and calls attention to some of the fundamental issues to be considered with regard to the revision of the Maternity Protection Convention (Revised), 1952 (No. 103), including the differing approaches to coverage with regard to cash and medical benefits and the financing of benefits. These are discussed in the light of the relevant ILO instruments, which are briefly reviewed.
Equality of treatment between men and women remains theoretical if social security systems and social protection measures do not take account of women's needs with respect to maternity.1 Indeed, social security systems are the principal source of cash and medical benefits in many ILO member States. Substantial improvements in coverage have been noted in recent years. In most industrialized countries with a market economy, the scope of social security protection has been extended to include almost all economically active women, while at the same time maternity leave has been increased, in almost all cases, to more than the 12-week minimum period for payment of benefits set by the Maternity Protection Convention (Revised), 1952 (No. 103), and the Social Security (Minimum Standards) Convention, 1952 (No. 102). The level of benefits has increased in parallel, and is also adapted to the situation of each woman in proportion to her previous earnings. In the vast majority of industrialized countries, it is more than the two-thirds stipulated by Convention No. 103.
In many countries, the number of women entitled to maternity protection has increased mainly because of the extension of social security schemes to sectors not previously covered, such as agriculture, domestic service and self-employment. For example, maternity benefits are available to agricultural workers in Ecuador, Morocco and Tunisia and to domestic workers in Brazil, Jamaica and Peru, while domestic and agricultural workers in Trinidad and Tobago are entitled to maternity benefits.
Some countries have included self-employed women within the purview of their social security systems. In the Bahamas, Costa Rica, Finland, Philippines, Portugal, Slovakia and Tunisia, self-employed women are protected under the same qualifying conditions, at the same level of benefits and for the same period of payment as employed women.2 In Albania and Denmark, cash benefits are paid at different rates for the two types of women workers, while Belgium, France, Gabon, Luxembourg and Spain have set up special systems to protect self-employed women during maternity. Self-employed women are also protected in Barbados, Germany, Greece, Hungary, Israel, Seychelles and Sweden. A voluntary coverage system for self-employed women exists in Belize, Nicaragua, Panama, Paraguay and Peru. In Thailand, such a system will start from 2 September 1998.
As women have come to play an increasing role in the economy, the question of equality of treatment for men and women has come to the fore. Efforts have been made to help women reconcile their work with family responsibilities and, in almost all countries where changes have been introduced, an attempt has been made to increase benefits by giving rights to fathers. Social security benefits for fathers are provided in Denmark, for example, where the employed or self-employed father has a right to two weekly payments within the 14 weeks after childbirth. In Sweden, the father has the right to a ten-day allowance after childbirth.
Progress has, however, not been uniform. Maternity benefits, which have traditionally been extensive in Eastern European countries, have been cut back with economic restructuring, particularly as regards cash benefits. The transition to a market economy has resulted in the deregulation of labour market institutions, social security systems and employment protection. The resultant increase in unemployment rates has particularly affected women who, under these circumstances, no longer fulfil the qualifying conditions for cash benefits.
While maternity benefits are generalized in developed countries, there are enormous disparities within and between developing countries. In newly industrialized countries, maternity protection has progressed a great deal and, in some instances, the rights granted exceed ILO minimum social security standards. For example, in Latin America and some parts of Asia, workers in the formal sector are relatively well-protected in this respect. The level of health benefits is increasing and in countries with adequate health-care infrastructure, either social security or the public health system is responsible for medical care and hospitalization during pregnancy, delivery and the perinatal period. In regions such as sub-Saharan Africa, however, protection has developed little. It is largely dependent on social welfare, rather than a social security system, and has insufficient scope, effectiveness and permanence. In Benin, for example, social security covered an estimated 5 per cent of the economically active population in 1992. In Côte d'Ivoire, the figure was 7 per cent in 1995 and, in Cameroon, 10 per cent in 1994.3
A large proportion of economically active women remain unprotected because they are under-represented in the formal sector towards which social security protection is directed. This problem is particularly acute in developing countries, although it is not limited to them. In Colombia, 52 per cent of economically active women were employed in the informal sector in 1994; in Peru, the figure stood at 48 per cent in 1995; and, in Poland, the informal sector employed 10 per cent of working women in 1995.
ILO standards relative to social security
Because most countries provide maternity benefits through social security, it is important that any revision of the Maternity Protection Convention (Revised), 1952 (No. 103), take into account the minimum standards prescribed for social security coverage. The four principal social security instruments to be considered are the Social Security (Minimum Standards) Convention, 1952 (No. 102), the Income Security Recommendation, 1944 (No. 67), the Medical Care Recommendation, 1944 (No. 69), and the Medical Care and Sickness Benefits Convention, 1969 (No. 130). These address the question of maternity protection within a wider framework of health-care provision and income security.
The Social Security (Minimum Standards) Convention, 1952 (No. 102), recognizes maternity benefits as one of the nine branches of social security. Part VIII, which refers to maternity benefit, provides for medical care and periodical payments in respect of suspension of earnings. As of 31 December 1996, Part VIII of Convention No. 102 had been ratified by 26 countries: Austria, Belgium, Bolivia, Bosnia and Herzegovina, Costa Rica, Croatia, Czech Republic, France, Germany, Greece, Italy, Libyan Arab Jamahiriya, Luxembourg, Mexico, Netherlands, Niger, Peru, Portugal, Senegal, Slovakia, Slovenia, Sweden, the former Yugoslav Republic of Macedonia, Turkey, Venezuela and Yugoslavia.
The Income Security Recommendation, 1944 (No. 67), advocates as one of its guiding principles that "income security schemes should relieve want and prevent destitution by restoring, up to a reasonable level, income which is lost by reason of inability to work". Paragraph 10 of the Recommendation states that the particular contingency for which maternity benefits should be paid is the loss of earnings resulting from women's abstention from work during prescribed periods before and after childbirth.
The Medical Care Recommendation, 1944 (No. 69), stresses that the availability of medical care constitutes an essential element of social security. Paragraph 21 specifies that the medical care afforded should comprise both general practitioner and specialist out- and in-patient care, including domiciliary visiting; dental care; nursing care at home or in hospital or other medical institutions; the care given by qualified midwives and other maternity services at home or in hospital; maintenance in hospitals or other medical institutions; and, so far as possible, the requisite dental, pharmaceutical and other medical or surgical supplies. Paragraph 29 notes the diagnostic and treatment facilities, the specialist advice and care, and the nursing, maternity and pharmaceutical services which should be at the disposal of the physician for the use of patients.
Provision of benefits
Whether provided through social insurance, public funds, or a mixed system of public and private funding, maternity benefits in ILO member States generally include medical care and some form of income replacement during leave.4
An examination of social security systems reveals two basic types. The first provides cash and medical benefits to all insured women, as in Austria, Belgium, Cameroon, France, Germany, Iran, Lebanon, Pakistan, Poland, Slovakia, Spain and Thailand (only in enterprises with more than ten workers), as well as the countries of Central and South America. The second covers all residents, but may have a different scope for the provision of health care or for cash benefits. Iceland provides both types of benefits to all resident women, whereas Australia, Canada, Cuba, Denmark, Finland, Georgia, Ireland, Latvia, Norway, Portugal, Sweden, United Kingdom and Uzbekistan, among others, protect all resident women for medical benefits, but only insured women for cash benefits. Indeed, universal health-care systems financed by public funds provide medical benefits in a large number of countries.
The Maternity Protection Convention, 1919 (No. 3), makes no mention of the conditions of access to maternity benefits, whereas the Maternity Protection Convention (Revised), 1952 (No. 103), states that women who comply with prescribed conditions shall be entitled to the medical and cash benefits. It is up to national law and practice to prescribe the qualifying conditions. Article 4, paragraph 5, of Convention No. 103 further provides that women who do not qualify for benefits granted as a matter of right shall be entitled to adequate benefits out of social assistance funds, subject to a means test.
Qualifying conditions vary significantly from country to country according to whether such benefits take the form of health care or cash. They may include proof of residence, required contribution periods or required periods of employment. In Spain, for example, no conditions are prescribed for access to health benefits; however, compliance with a contribution period of 180 days in the last five years is required for entitlement to cash benefits. Canada, Iceland and New Zealand require proof of a period of residence for access to medical benefits.
In countries where universal health care is not available, medical benefits are subject to contribution periods. This is the situation in Brazil, Colombia, Dominican Republic, Ecuador, Egypt, Greece, Nicaragua, Peru, Philippines (for non-pensioners), Senegal and Thailand. In Algeria, Guinea and Tunisia (non-agricultural employees), a certain period of employment is required, while in France and Mauritania, the criterion is a period of employment with contributions.
As far as qualifying conditions for cash benefits are concerned, provision is often subject to required contribution periods, as in Albania, Belgium, Côte d'Ivoire, Czech Republic, Germany, Greece, Guatemala, Honduras, Islamic Republic of Iran, Ireland, Israel, Mexico, Nicaragua, Paraguay, Peru, Philippines, Spain, United Kingdom and Zambia. In other countries, a specified period of employment is required, as in Algeria, Argentina, Bangladesh, Canada, France and Norway. In the Central African Republic, Gabon, Guinea, Madagascar, Mali and Tunisia, qualifying conditions for maternity benefits are a certain period of insured employment. In Australia and New Zealand, cash benefits for maternity are subject to a means test.
The need for cash benefits has been recognized in all ILO standards concerning maternity protection. Cash benefits provided during maternity leave are intended to replace a portion of the income lost due to the interruption of the woman's professional activity. Without such financial support, the woman's loss of earnings during her absence on leave, coupled with increased expenditures associated with pregnancy and birth, would pose financial hardship for many families. In such circumstances, women might feel compelled to return to work before their entitlement to leave was exhausted and, perhaps, before it was medically advisable to do so. Cash benefits give substance to the right to leave and, as a general rule, the duration of cash benefits coincides with the length of leave, although this is not always the case.
Convention No. 3 (1919) provides that during maternity leave, the woman will receive cash benefits for 12 weeks. The level of these benefits is not stated, leaving it up to individual States to set the exact amount. The Convention stipulates only that the provision must be sufficient for the full and healthy maintenance of the woman and her child. The Convention adds that no mistake on the part of the medical adviser in estimating the date of confinement shall preclude a woman from receiving benefits from the date of the medical certificate up to the date of the actual confinement.
Convention No. 103 (1952) provides that benefits will be paid throughout the absence prescribed by law, i.e. at least 12 weeks, as well as any extensions of leave accorded for a birth which occurs after the expected date or in the event of illness resulting from the pregnancy or childbirth or its complications.5 As regards the amount, this Convention reproduces the terms of the 1919 Convention, stating that the benefits shall be fixed by national laws or regulations "in accordance with a suitable standard of living". However, with regard to benefits provided under social insurance systems, the Convention stipulates that the benefits must not be less than two-thirds of the previous earnings taken into account for the purpose of computing benefits.
Recommendation No. 95 (1952) suggests that, wherever practicable, cash benefits should be fixed at a higher rate than the minimum standard provided in the Convention and should, to the extent possible, equal 100 per cent of the woman's previous earnings taken into account to calculate benefits.
The Social Security (Minimum Standards) Convention, 1952 (No. 102), states that cash maternity benefits will consist of a regular payment calculated on the basis of previous insured earnings, which will be at least 45 per cent of the salary which the woman earned before she stopped work. The regular payment may be subject to variations, provided that they do not involve a reduction in the average amount of the sum mentioned above. This benefit, which will replace income, must, according to Recommendation No. 67, be such that it restores to a reasonable level the resources lost owing to inability to work. The international instruments under examination consider that the concept of "reasonable" should be understood in relation to the beneficiary's previous remuneration. Appended to Part XI of Convention No. 102 is a schedule of periodic payments which provides a set of substitute rates considered to be desirable by the International Labour Conference for the various circumstances. In the case of maternity benefits, it would be the rate already mentioned of 45 per cent of the insured salary of a typical beneficiary. As noted above, Maternity Protection Convention No. 103 increases this level to two-thirds of the salary taken into account for social security purposes.
In practice, cash benefits provided under social security systems do not wholly replace the shortfall in income due to an interruption of work. They are generally paid as a percentage of insured earnings, or as a percentage of earnings taken into account for the purpose of computing benefits. Because earnings are rarely totally insured and benefits are usually computed on the basis of only a portion of the total salary, cash benefits may represent only a relatively small fraction of actual earnings. In Canada in 1995, for example, maternity benefits were based on a rate of 55 per cent of previous average insured earnings up to the maximum pensionable earnings level, but a benefit ceiling of CAN$1,792 per month meant that the effective individual replacement rate could be a far smaller percentage of actual income. Benefit ceilings exist in a number of countries, including Austria, El Salvador, France, Gabon, Ireland, Morocco and Thailand.
National legislation nonetheless attempts to ensure payment of a benefit which may not fall below a certain level, even if a beneficiary's previous earnings are low. Replacement rates lower than 100 per cent may not necessarily result in a loss of a certain standard of living.
Cash benefits granted by social security systems can be calculated either on the basis of the insured earnings of the woman on the expected birth date, or her average insured earnings for the previous months or year. With regard to Europe, for example, the following benefits apply for the normal period of maternity leave: Turkey (66.66 per cent of earnings); Belgium (82 per cent of earnings for the first month for salaried employees, 75 per cent thereafter); Austria, Israel and the Russian Federation (100 per cent of earnings); France (100 per cent of basic daily wage); Hungary (100 per cent of daily average net earnings if 270 days of insurance within last two years, or 65 per cent, if at least 180 days of insurance); and Spain (100 per cent of the daily salary on which contributions were paid during the months preceding maternity leave).
In Latin America, 100 per cent of earnings is paid in Argentina, Brazil and Uruguay, while in Mexico, payments equal the average earnings. In Chile, 100 per cent of net earnings is paid for public employees; for private sector employees, the benefit equals the average monthly net earnings in the last three months. In Africa, countries such as Benin, Cameroon and Senegal grant a provision equivalent to 100 per cent of the woman's earnings. In Asia, India pays 100 per cent of average earnings, and the Philippines provides for 100 per cent of the average daily wage for the best six months of the 12 months preceding the birth. Japan pays 60 per cent of the basic salary, as well as a lump sum birth grant; Thailand, 50 per cent of salary. In Australia and Zambia, women are paid a lump sum. These examples are taken from the legislation of the countries examined, but it should be remembered that, in many cases, the reality is different, since these benefits are subject to the influence of other factors, such as taxation or the application of benefit ceilings.
In many countries, paid maternity leave is increased in the event of a multiple birth. In Armenia and Turkmenistan, women are entitled to cash benefits for 180 days instead of the 140 days paid under normal circumstances. In Iceland, cash benefits are paid for one additional month per child beyond the six months' paid leave provided for the birth of a single child. In Luxembourg, the benefit is paid for 20 weeks instead of the 16-week period. In Estonia, Georgia and Uzbekistan, the postnatal leave period is extended from eight to ten weeks in case of a multiple birth. In Poland, the leave period is extended from 16 to 26 weeks; in Slovakia, from 28 to 37 weeks; and, in Spain, from 16 to 18 weeks. In Afghanistan and China, paid leave is extended by 15 days, and in Viet Nam, by 30 days.
Some countries increase the period of payment of benefits for large families. For example, in France, the cash benefit is paid for eight weeks before and 18 weeks after childbirth for the third and subsequent children, compared to the six weeks before and ten weeks after childbirth for the first and second child. As far as the question of limiting the number of children in relation to whom maternity benefits are granted, any such limitation raises ethical concerns, since social security is a human right to which women and children are entitled as members of society.6
The international standards relating to maternity protection state that the woman has the right to medical care as well as to cash benefits. Convention No. 3 (1919) stipulates that the pregnant woman is entitled to free attendance by a doctor or qualified midwife.
Convention No. 103 (1952) is more precise. It states that medical benefits shall include prenatal, confinement and postnatal care provided by qualified midwives or medical practitioners, as well as hospital care if necessary. Freedom of choice of doctor and freedom of choice between a public and private hospital shall be respected.
Recommendation No. 95 (1952) lists, in Paragraph 2(2), the medical benefits to be granted. Wherever practicable, these should comprise "general practitioner and specialist out-patient and in-patient care, including domiciliary visiting; dental care; the care given by qualified midwives and other maternity services at home or in hospital or other medical institutions; maintenance in hospitals or other medical institutions; pharmaceutical, dental or other medical or surgical supplies; and the care furnished under appropriate medical supervision by members of such other profession as may at any time be legally recognized as competent to furnish services associated with maternity care". These provisions recall those of the Medical Care Recommendation, 1944 (No. 69), cited above.
In Paragraph 2(3), Recommendation No. 95 notes that the medical benefit should be afforded with a view to maintaining, restoring or improving the health of the woman protected and her ability to work and to attend to her personal needs. Paragraph 2(4) additionally provides that the institutions or government departments which administer medical benefits should encourage the women protected to use the general health services placed at their disposal by the public authorities or by other bodies recognized by the public authorities. In this, it echoes the provisions of Article 49(4) of the Social Security (Minimum Standards) Convention, 1952 (No. 102).
Thus, maternity protection meets a broader aim of social integration than "classic" social security protection, to the extent that it not only provides a substitute income, and thereby protects against need, but also places appropriate health services at the disposal of individuals. Such services might include mother and child health-care programmes, for example. In addition, national legislation in many countries considers the provision of prenatal care allowances and birth allowances, which take into account the expenses which the woman will have to meet owing to her pregnancy (prenatal checkups) as well as those she incurs as a result of the birth (postnatal benefits). Milk and clothing allowances often also supplement the regular benefits. Such benefits in kind and in cash are mentioned in Paragraph 2(6) of Recommendation No. 95.
Provision of health services varies from country to country. The general expansion in public health systems and social security hospitals has led to improvements in many countries. In English- and French-speaking Africa, medical care is often provided in public health system hospitals whereas, in Latin America, health care is generally provided by social security institutions in their own facilities and with their own personnel. The choice of doctor and hospital to which the patient has access may be limited. Some countries contract services from either state-owned or private sector medical facilities when social security medical services have not yet been installed. In some instances, the social security authorities deliberately refrain from creating their own infrastructure when they are able to make use of good quality services already available in the public or the private sector.
Special agreements may affect the services provided in particular countries. In France, for example, the insured person pays for services and is reimbursed by local health funds according to the rules established in the conventions subscribed for this purpose. A list of the hospitals is available for the beneficiaries. In Germany, there is free choice among health fund doctors, whose fees, along with the cost of hospitalization and medicines, are paid by the health funds.
Financing of maternity benefits
Conventions No. 3 (1919) and No. 103 (1952) specifically state that maternity benefits (medical care and cash benefits) will be provided by means of an insurance system or public funds. Convention No. 103 accordingly provides in Article 4, paragraph 8, that in no case shall the employer be individually liable for the cost of the maternity benefits to which women employed by him are entitled. Underlying this provision is the desire to eliminate the costs of maternity protection as a disincentive to the employment of women.
As regards the methods used to fund costs deriving from maternity benefits, Article 4, paragraph 7, of Convention No. 103 provides that any contributions due under a compulsory social insurance scheme providing maternity benefits, and any tax based upon payrolls which is levied with the aim of providing the benefits mentioned above, "shall, whether paid both by the employer and the employees or by the employer, be paid in respect of the total number of men and women employed by the undertakings concerned, without distinction of sex".
In many countries, the methods for meeting the cost of maternity benefits appear to conform in general to the provisions of ILO instruments. In most countries in Europe and Latin America, as well as several in Africa and Asia, maternity benefits are provided within the framework of social insurance, which is generally compulsory. In a large portion of these, benefits are funded by contributions paid by both employers and workers of both sexes without distinction as to age. In more than a third of the countries surveyed, however, employers were principally, if not solely, responsible for contributions to social insurance. Governments sometimes covered administrative costs as well as any deficits. Many countries also use tax revenues to meet the costs of benefits.
In a number of countries, maternity benefits are financed by the State, generally as part of a welfare-based system. Whereas insurance systems that rely on specifically allocated financial resources and medical services are generally able to guarantee effective cover, systems based on welfare, when applied to broader sectors of the population, can offer only modest benefits. This gives rise to different levels of health care according to whether women gain access to this care as employees coming within the scope of social security coverage or whether they seek care under universal public health systems.
Maternity benefits provided by a public welfare system are sometimes used to supplement those funded by social insurance. They may be granted to workers who have no right to social insurance or may be added to social insurance benefits to extend protection. This is the case in Austria, Denmark, Finland, France, Germany, Luxembourg, Netherlands, Norway and Sweden.
Workers not included in the scope of social security legislation may gain access to maternity benefits through collective agreements. In Pakistan, for example, an agreement reached between Eastern Federal Union (EFU) General Insurance Limited and EFU Insurance Workers Union provides that female employees shall receive 4,000 rupees for a normal delivery and 7,000 rupees for a surgical delivery. In a number of countries, collective agreements simply echo the provisions of the law regarding leave and benefits.
Payments by the employer
Employers pay all or a major portion of maternity benefits in a large number of countries, and in particular in developing countries where social security systems are not adequately developed. The employer is legally responsible for maternity payments in the Democratic Republic of Congo, Malaysia, Malta, Mauritius, Mozambique, Nepal, Pakistan, Rwanda, Saudi Arabia, Singapore, Solomon Islands, Somalia, Sri Lanka, Sudan, Syrian Arab Republic, United Republic of Tanzania, Thailand, Uganda, United Arab Emirates, Zambia and Zimbabwe. In Botswana, the employer in designated areas is required to pay 25 per cent of the woman's salary. In Mexico, Panama and Sao Tome and Principe, the employer must pay the woman's salary during leave if she does not fulfil the conditions for social security. As mentioned previously, in a number of countries, the employer finances the contribution to social insurance for cash maternity benefits without worker participation.
Employer liability has long been viewed as a disincentive to employers to employ women of child-bearing age, and thus detrimental to the promotion of equal treatment for men and women.7 It is widely held that it is only through collective financing and the redistributive function of social security that the proper balance between fairness and solidarity can be achieved. In Burkina Faso, as a result of pressure from the unions which manage the National Social Security Fund, it is this fund which is now responsible for paying the salaries of mothers during the three months of maternity leave. In China, employer liability is currently under review with the aim of moving towards a system of social insurance.
Despite the principle that employers should not be held individually liable for payment of benefits, nothing prevents employers from raising the level of benefits provided by supplementing the social security benefits with additional payments. This type of compensation -- whether voluntary, based on collective agreement, included in the employment contract or provided in legislation -- exists in a number of countries. In Sao Tome and Principe, for example, the employer must pay the difference between the social security benefits and the woman's actual salary for the total duration of leave. In Benin, Burundi, Congo and Togo, employers pay 50 per cent, with the remainder provided by the system of national insurance. A similar approach is taken in Trinidad and Tobago, where national insurance replaces 60 per cent of earnings and employers must pay the remaining 40 per cent in certain sectors, such as catering, or for certain occupational groups, such as shop assistants, household assistants and teachers.
In France, for example, collective agreements valid in 1997 in the insurance sector (general agencies) and in the retail sector (department stores) provide that the difference between the benefits paid under social security and the woman's actual salary shall be paid to women with at least one year of service in order to maintain their full salary during maternity leave. In Canada, supplementary payments for teaching personnel provide compensation during the two-week statutory period during which no other indemnity is paid. The rate varies from 60 to 100 per cent of salary, depending on the province and the school jurisdiction. In the United Kingdom, a recent survey found that 149 of the 243 establishments examined provided a higher rate of cash benefits than those provided under the law. Improved benefits were often related to time in service.8
The principle of providing cash and medical benefits to women workers on maternity leave is strongly supported in ILO member States, but the paths towards this objective vary greatly. The degree of success in achieving the goal depends on a number of factors, including the country's level of economic development, the strength or weakness of the social security system, the quality and extent of the medical infrastructure, and the political will to bring practice into line with law. The organization and funding of health services and the manner of providing income replacement vary widely from country to country.
Mixed systems of public and private health services are found in many countries. The costs of health care are met through a combination of public funds, compulsory insurance, voluntary insurance and direct payment by the employer or worker. In many countries, improvements in medical benefits have developed in line with the general expansion in public health systems and social security hospitals. Where resources are scarce, this approach makes possible the provision of prenatal, confinement and postnatal care to a larger portion of the female workforce, but may limit the choice of doctor and hospital available to the patient.
Most ILO member States provide some form of income replacement during maternity leave with the aim of securing the full and healthy maintenance of the woman and her child and a suitable standard of living. A large number of developing countries, however, whose social insurance schemes are not yet fully developed, are unable to do this through compulsory social insurance. The narrow scope of application and the low level of benefits paid have led to mixed systems of partial payment through insurance schemes with the remainder provided by employers. In many countries, employers may be required to pay the worker's salary directly during her maternity leave and, in some, employers are also liable to cover the cost of medical care. Where social insurance systems operate, benefits may be calculated at a level below the two-thirds of insured earnings required in Convention No. 103, yet still provide income replacement to ensure against financial hardship during the leave period. In some countries, the divergence between law and practice is such that collective agreements play a major role in securing benefits for workers. Those who work outside of collective agreements may thus face the prospect of maternity without effective protection.
The variety of circumstances pertaining to the provision of medical care and income replacement and, in particular, the differing means and capacity of member States at different levels of development to provide benefits require a realistic assessment of how the common goal of maternity protection may best be reached.
1 ILO: "Conclusions concerning social security and social protection: Equality of treatment between men and women", in Report of the Tripartite Meeting of Experts on Social Security and Social Protection: Equality of Treatment between Men and Women, document no. TMESSE/1994/D.1 (Geneva, 1995), p. 11.
2 This is also the case, for example, in Cyprus, Ecuador, El Salvador, Equatorial Guinea, Guyana, Italy, Libyan Arab Jamahiriya, Norway and Uruguay.
3 ILO social security database.
4 Country references are based on information taken from Social Security Administration, Office of Research and Statistics: Social security programs throughout the world -- 1995, Research Report No. 64 (Washington, 1995).
5 The Social Security (Minimum Standards) Convention, 1952 (No. 102), does not lay down the duration of leave. It does state that the payment of cash benefits may be limited to 12 weeks, unless a longer period away from work is required or authorized by national laws or regulations, in which case payments may not be limited to a lesser period than that authorized.
6 Article 22 of the Universal Declaration of Human Rights, adopted and proclaimed by General Assembly resolution 217A(III) of 10 December 1948.
7 Experts have raised the question of whether the non-liability of employers might be an obstacle to ratification of Convention No. 103, given the numerous developing countries in which employers bear the principal cost of maternity benefits. See ILO: Report of the Tripartite Meeting of Experts on Social Security and Social Protection, op. cit., p. 3.
8 "Maternity arrangements '95: Part 1", in Equal Opportunities Review (London, Sep.-Oct. 1995), No. 63, p. 9.
Pregnancy, childbirth and the postnatal period are three phases in a woman's reproductive life in which special health risks exist and special workplace protections are required. Regular medical supervision and, when needed, the adaptation of the woman's activities in line with her condition may greatly reduce the specific risks to her health, enhance the probability of a successful outcome to the pregnancy and set the stage for the healthy development of the child.
The Maternity Protection Convention (Revised), 1952 (No. 103), devotes considerable attention in Articles 4 and 5 to the health aspects of maternity protection, providing for the material support of mother and child through cash benefits and medical care. Medical benefits include prenatal, confinement and postnatal care by qualified midwives or medical practitioners as well as hospitalization care where necessary. These provisions cover three of the "four pillars" on which the World Health Organization has based its policy recommendations regarding safe motherhood, i.e. family planning, prenatal care, clean and safe delivery, and essential obstetric care. These four types of strategic interventions demonstrably reduce the incidence of maternal mortality and morbidity and improve the survival rates and health status of newborns.
The Maternity Protection Recommendation, 1952 (No. 95), provides guidance on the protection of health of employed women with regard to conditions of work. It prohibits night work, overtime and work prejudicial to the health of mother and child. Such measures seek to minimize fatigue, reduce physical and mental stress and protect women against dangerous or unhealthy work. The right to transfer away from work harmful to health is provided in paragraphs 4 and 5.
These and other provisions are widely reflected in national legislation protecting the health of employed women before and after childbirth. Legislative provisions tend to fall into three main categories. The first concerns the protection of maternity per se, usually through the granting of leave, the provision of cash and medical benefits, and the strengthening of employment security. The preceding chapters have reviewed these types of protection.
Occupational safety and health legislation offers protection with regard to the conditions of work of pregnant women and nursing mothers. Protective measures often include prohibitions or restrictions which limit the types of work available to women or prevent exposure to harmful substances or processes. Foetal protection policies are frequently implicit, and sometimes explicit, in such prohibitions and restrictions, which seek to protect the unborn child from workplace hazards. The adaptation of working time and/or the modification of duties, the right of temporary transfer to alternative work or, in some cases, the extension of leave are often addressed. Law and practice regarding working time arrangements, adaptation of duties, and protection from unhealthy or dangerous work for pregnant women and nursing mothers form the first focus of this chapter.
A third health concern is evident in national law which protects, and in some cases promotes, breast-feeding. Legislative provisions relative to employed women establish the right to nursing breaks during working time and may encourage, if not require, employers to provide appropriate facilities to this effect. The right to paid nursing breaks and the need for facilities for nursing care are addressed in Convention No. 103 (Article 5) and its accompanying Recommendation No. 95 in Section III, (2) and (3). This chapter concludes with a review of national law and practice regarding nursing breaks and nursing facilities for working mothers.
Occupational safety and health: New approaches towards protection
Three major trends have marked changes in law and practice concerning the occupational safety and health of pregnant women and nursing mothers since the adoption in 1952 of Recommendation No. 95. The most fundamental of these has been the clear evolution away from the generalized employment prohibitions for women, which marked the first half of the century, toward more targeted protection for groups at special risk, for example, women before and after childbirth. This new approach has developed in response to three main factors: general improvements in the safety of industrial working environments, wider participation by women in all aspects of economic life, and the ongoing redefinition of male and female social roles. The basic challenge inherent in this approach has been to reconcile the principle of equality of treatment between men and women with the responsibility of protecting pregnant women and nursing mothers from the workplace dangers which specifically affect them. An important aspect of resolving any apparent conflict in these goals has been the recognition that the adaptations which may be needed in working conditions and working time arrangements are not dissimilar to those required in the event of illness, temporary disability or some other limiting condition which may potentially arise in the working life of any employee.
Another trend, closely related to the first, has been the move toward protective measures better adapted to the needs and personal preferences of individual workers at different periods in their working life. Rather than imposing involuntary restrictions on certain types of work for wide categories of workers, such as women of child-bearing capacity, employers are called upon to make assessments of workplace risks and appropriate adjustments in the conditions of work on a case-by-case basis. Greater discretion is left to individual workers to accept or refuse assignments or to request transfer due to considerations of reproductive health. In order to ensure informed consent, mechanisms for fuller information-sharing between employers and workers and their organizations are of vital importance. Indeed, the success of such an approach relies heavily on the quality of information available to employers and workers and their capacity to use this knowledge in decision-making.
The last 45 years have also witnessed a growing awareness of the impact of the working environment on reproductive health and of the negative outcomes to pregnancy associated with both maternal and paternal exposure to hazardous substances, agents and processes. This recognition has resulted in a reorientation of safety and health legislation in some countries from protection aimed solely towards pregnant women, nursing mothers or women in their child-bearing years to the protection of both men and women workers from reproductive hazards at the workplace. Equal weight is assigned to ensuring equality of treatment with regard to employment rights and to meeting the needs of all workers with regard to safety and health. Rather than simply removing the protection afforded to women due to their child-bearing capacity, the aim is to reduce or eliminate the risk as far as possible, raise the level of protection for both sexes and provide transfer options for both men and women exposed to reproductive health hazards, when necessary.1
By the mid-1970s, a number of countries had begun to review protective legislation applying to women to determine whether the protection provided was justified on scientific grounds and should thus be retained, or whether legislative provisions needed to be revised, supplemented, extended or repealed. As to ILO standards, the resolution on equal opportunities and equal treatment for men and women in employment, adopted by the International Labour Conference in 1985, requested that protective instruments be reviewed periodically to determine whether their provisions are still adequate and appropriate in the light of experience acquired since their adoption and of scientific and technical information and social progress. The Protocol adopted in 1990 to the Night Work (Women) Convention (Revised), 1948 (No. 89), and the Night Work Convention, 1990 (No. 171), adopted in the same year, were among the first fruits of this ongoing review process. A closer examination of these two instruments reveals elements of the new approach to safety and health which has gained favour in recent years: targeted protection during specified periods, the possibility of temporary transfer to alternative work or, if such work is not available, an extension of leave.
The Maternity Protection Recommendation, 1952 (No. 95), provides in Paragraph 5(1) that "night work and overtime work should be prohibited for pregnant and nursing women and their working hours should be planned so as to ensure adequate rest periods". It embodies the protective approach to women's employment at night adopted in the Night Work (Women) Convention (Revised), 1948 (No. 89), while extending the prohibition beyond industrial undertakings.
Since 1952, few protective measures with regard to women's employment have proven as controversial or have been the object of such extensive revision as those concerning night work. Of the 65 ILO member States which have ratified the Night Work (Women) Convention (Revised), 1948 (No. 89), 15 have since denounced it and two others have ratified the 1990 Protocol which provides for certain exceptions.2 One of the sources of controversy has been the recognition that the general prohibition of night work by women has been discriminatory in effect. Yet, in many countries, removal of protection could in practice aggravate women's working conditions, exposing them to longer hours of work and low pay while increasing their exposure to harassment, notably in transport to and from work at night. The prohibition of night work has prevented access by women to the full range of night jobs, while the derogations granted have tended to apply to heavily feminized, low-paying sectors and occupations. Finding the balance between equality of treatment and the need for special protection has been the challenge. The prohibition of night work restricted the freedom of women to adapt their work schedules according to their personal preferences and family circumstances, but reducing night work to a minimum for both male and female workers is deemed by many to be preferable to simply removing the limitations on night work for women.
The Night Work Convention, 1990 (No. 171), does not prohibit night work for pregnant and nursing workers. It provides instead in Article 7 that measures shall be taken to ensure that an alternative to night work is available to women night workers before and after childbirth, for a period of at least sixteen weeks, and for additional periods if necessary for the health of the mother or child. Transfer to day work, the provision of social security benefits or an extension of maternity leave are among the measures mentioned.
A 1987 survey carried out by the ILO3 revealed that only some 20 countries had no legislation prohibiting night work by women. Among these were Antigua and Barbuda, Denmark, Haiti, Qatar and Uganda. In a number of countries, including Barbados, Ireland, Israel, Spain and Suriname, laws prohibiting night work by women workers have been repealed, mostly since the mid-1970s. In Australia and the United States, for example, both federal and most state legislation on the subject has been repealed.
In a small number of countries, night work is prohibited for both men and women with specified exceptions. In Belgium and Switzerland, exemption possibilities are broader and more easily obtainable for men than for women, while in Norway and Sweden, the sex of workers is not a consideration in the treatment of exempted occupations. In the Netherlands, a 1986 law has brought exemption possibilities for women closer to those applicable to men.
Between these two poles, i.e. the absence of prohibition for either sex and the general prohibition for both sexes, lie the varied legislative approaches regulating night work for women or for pregnant women and nursing workers which are found in the vast majority of ILO member States. Indeed, despite the controversy attached to night work prohibitions, many countries continue to restrict the employment of women at night. In approximately one-quarter of the countries examined, a general prohibition applies to all economic sectors, although exemptions are frequent in respect of agriculture, health establishments, hotels, restaurants and bars, and public entertainment. Night work is prohibited for women in industry in one-third of the countries examined.
Where an extensive prohibition of night work applies, special provisions for pregnant women or nursing mothers are required only to the extent that the legislation provides for significant possibilities for exemptions or exceptions. For example, in Italy, exceptions to the prohibition of night work by women in industry, whether provided for under legislation or negotiated under collective agreements, cannot apply to women during pregnancy or up to seven months after confinement. Other countries which disallow certain exceptions for pregnant or nursing women include Angola, Austria and Romania.
In nearly 10 per cent of the countries surveyed, night work is prohibited or regulated only in connection with maternity. The scope of the occupations covered is then often large. The prohibition of night work is limited to pregnant women in Albania, Chile, China, Cuba, Panama and Singapore. This prohibition often extends to a period following the return to work and is sometimes linked to the fact that the woman is nursing her child, as in Afghanistan, Bulgaria, Hungary, Mongolia and the Russian Federation. In Mozambique, for example, night work is prohibited from the fifth month of pregnancy through the first six months of nursing.
The prohibition of night work by pregnant women may apply as soon as the pregnancy is known, as in Chile and Ethiopia, or may concern only a later period, e.g. the three months before the expected date of delivery, as in Lesotho. However, in some cases, as in Namibia, the period during which the woman may not work at night may be extended if requested by a physician.
In some countries, such as Japan, night work is not prohibited. Instead, if a pregnant or nursing worker so requests, she will not be required to work at night. In Israel, the refusal by women with family responsibilities to work at night may not constitute grounds for non-recruitment or dismissal. In Singapore, when night work is subject to a woman's request or consent, a medical certificate may be required to confirm that the woman is fit to work at night.
The European Union provides in Council Directive 92/85/EEC of 19 October 19924 that member States must take measures to ensure that women are not obliged to perform night work during pregnancy or for a period following childbirth, subject to submission of a medical certificate. Measures undertaken in member States must entail the possibility of transfer to daytime work or, where such a transfer is not technically and/or objectively feasible or cannot reasonably be required on duly substantiated grounds, leave from work or the extension of maternity leave.
Adaptation of working time arrangements
Pregnant working women should be protected from "prolonged working hours and poorly or irregularly planned working schedules, which leave insufficient time for adequate rest", according to a WHO statement on health standards for maternity protection of working women.5 These concerns are echoed in Paragraph 5(1) of Recommendation No. 95, which prohibits overtime and states that "working hours should be planned so as to ensure adequate rest periods".
The prohibition of overtime work by pregnant women is common to a number of countries, for example, Chile, Equatorial Guinea, Republic of Korea and Panama. In certain cases, the prohibition extends to nursing mothers, as in Austria, Belgium and Germany, or to women whose child is below a certain age, as in Afghanistan, China, Cuba, Ghana, Hungary, Lao People's Democratic Republic and Yemen. In a few countries, the prohibition of overtime is not absolute, but applies only if such work will endanger the woman's health. In Poland, pregnant women and women with children below a given age may not be required to work overtime, but may do so with their own consent.
Other working time restrictions, though fairly frequent, have so far proven less controversial than those concerning night work, perhaps because they are seen as legitimate for health and safety reasons or because they enable workers to achieve balance between their professional and family responsibilities. These include provisions regarding weekly rest and work on public holidays. Specific provisions regarding weekly rest of women have been found in some 20 countries. Most commonly, these prohibit exceptions to weekly rest in the case of pregnant and nursing workers. A few countries have established an absolute prohibition in respect of work on Sundays or public holidays, as in Austria, Cambodia and Guyana.
The right to part-time work upon request coupled with the right to return to full-time work at a later time might benefit workers who wish to remain professionally active during pregnancy and nursing, yet require shorter working hours to avoid excessive fatigue. Many working women still carry the double burden of a full-time workday combined with major time commitments at home. The World Health Organization notes that, when making accommodation for pregnancy and recent birth, the totality of a woman's workload must be taken into account, including household work and child care.
Legislative provisions concerning the right to part-time work on request have been identified in only a few countries. They apply to all women in Belarus, to nursing mothers (civil servants) in Uruguay and to mothers with children under six years of age in Romania, if no day nurseries are available. In Croatia, a mother can work half-time until her child's first birthday; for twins or the third or subsequent child, the woman may work half-time for up to three years. In Mongolia, part-time work is granted only to pregnant women who present a medical certificate.
Recognition of the desirability and feasibility of shorter hours is fairly widespread, however, as evidenced by the fact that in practice employers in a number of countries permit nursing workers to convert the time allotted for nursing breaks into time off at the start or finish of the working day. This allows for late arrival or early departure from the workplace.
Regular prenatal examination offers the opportunity to screen the woman for risk factors which might require specific medical attention, to monitor her health throughout the course of the pregnancy, and to detect and treat potentially life-threatening conditions at an early stage. Given the importance of regular health monitoring during pregnancy, many countries provide employed women with time off from work for prenatal medical examinations.
The 1992 European Directive and its implementing legislation illustrate this approach. In France, medical consultations during pregnancy are compulsory and the time spent is counted as hours worked for the calculation of paid leave and seniority rights. In Portugal, the provision is made for time off as long and as often as necessary for prenatal care. In some countries, however, the right to time off may be limited to cases when it is not possible to schedule the examination outside working hours, as in Poland. In others, a medical certificate may be required, as in Ethiopia.
The law does not normally specify the amount of time off available to pregnant women. Cuba, however, grants six full days or 12 half-days for prenatal medical and dental care up to the 34th week of pregnancy. Turkey grants time off at least once a month after the first three months. In Japan, the employer must endeavour to make arrangements to enable the woman to have the necessary time off for health guidance and medical examinations once every four weeks up to the seventh month of pregnancy. In Israel, however, a maximum is prescribed: a woman's absence may not exceed a total of 40 hours during her pregnancy if she works more than four hours each day, or not more than 20 hours if she works less.
Adaptation of duties, transfer, leave
The adaptation of working time is among the most widespread and the easiest accommodations for employers to make to meet the needs of pregnant workers and nursing mothers. Adjusting an employee's work schedule to avoid the excessive fatigue associated with night work and overtime work provides targeted protection during specified periods and may be adapted to individual circumstances with relative ease. Indeed, many such arrangements are agreed on an informal basis every day. For more serious safety and health risks, however, temporary transfer to alternative work or, if such work is not available, an extension of leave provides the greatest security.
The Maternity Protection Recommendation, 1952 (No. 95), states in Section V.5(2) that "employment of a woman on work prejudicial to her health or that of her child, as defined by the competent authority, should be prohibited during the pregnancy and up to at least three months after confinement and longer if the woman is nursing her child". Section V.5(3) provides a non-exhaustive list of the type of activities falling under the provisions of V.5(2). Subparagraph (4) of the same section provides that "a woman ordinarily employed at work defined as prejudicial to health by the competent authority should be entitled without loss of wages to a transfer to another kind of work not harmful to her health". Subparagraph (5) further states that "such a right of transfer should also be given for reasons of maternity in individual cases to any woman who presents a medical certificate stating that a change in the nature of her work is necessary in the interest of her health and that of her child".
The European Union has developed a clearly structured process for dealing with occupational risks in general and the specific risks affecting pregnant workers, those who have recently given birth and those who are breast-feeding. Workplace risks include chemical, physical and biological agents and industrial processes considered to be hazardous for the safety or health of pregnant and nursing workers as well as working conditions involving unsafe movements and postures, mental and physical fatigue and other types of physical and mental stress. The EU Directive provides for the establishment by the European Commission of guidelines to enable employers to assess the nature, degree and duration of exposure of workers to workplace risks. It is then incumbent upon employers to assess health and safety risks, to decide what measures should be taken, and to inform workers and/or their representatives of the results of the assessment and of the measures necessary.
If a workplace risk is identified, the employer shall, in the first instance, temporarily adjust the working conditions and/or the hours of work of the employee concerned in order to avoid exposure to the risk. If such an adjustment is not technically and/or objectively feasible, or cannot reasonably be required on duly substantiated grounds, the employer shall move the worker to another job. If such transfer is not technically and/or objectively feasible, or cannot reasonably be required on duly substantiated grounds, the worker shall be granted leave for the whole of the period necessary to protect her safety or health.6
Dangerous, arduous or unhealthy work
The legislative approaches adopted in ILO member States with regard to dangerous, arduous or unhealthy work vary widely. They range from a general prohibition of such work for all women workers to sectoral or occupational restrictions, restriction of exposure to particular substances or agents, and targeted restrictions applicable solely to pregnant and nursing workers. Only a few countries have tackled the issue of risks to the reproductive health of both men and women workers and research in this area is still in its early stages. Nonetheless, as scientific evidence accumulates with regard to the negative outcomes of pregnancy due to paternal exposure, particularly to ionizing radiations and certain hazardous chemicals, it appears likely that the regulation of reproductive health risks for both sexes will be the subject of future action.
Employment prohibitions or restrictions on account of the dangerous, arduous or unhealthy nature of the work have been identified for women workers in about 100 countries. In roughly half of these, the legislation contains a general prohibition, typically applicable to all sectors of economic activity, against women being employed in such work. In almost 90 countries, a legal prohibition in respect of underground work for women workers has been established, although this activity may be included in the definition of dangerous, arduous or unhealthy work applied in other countries as well. Regulations restricting the manual lifting, carrying, pushing or pulling of loads by women have been identified in more than 50 countries and are usually applicable to all activities and sectors.
In about 20 countries, the law simply empowers the competent authority to issue regulations concerning the types of dangerous, arduous or unhealthy work to be prohibited to women. In others, legislation contains a more or less detailed list of activities prohibited to women. The most common of these are the loading and unloading of ships; oiling, cleaning or repairing of machinery in motion; working in places where the dangerous parts of machinery are not suitably protected; work in compressed air caissons; transport on pedal tricycle carriers; manufacture or handling of explosives; and the operation of pneumatic tools or other machines causing vibrations. A few countries prohibit employment of women under water or in extreme heat or cold. Other activities prohibited to women involve the production of dust or irritant poisonous or toxic substances, or the risk of disease, including work in tanneries, the production of fertilizers, gilding and silvering, the manufacture of sulphates, and the manufacture and processing of lead. As noted in the review of night work provisions, such general prohibitions may be discriminatory in effect and thus merit re-examination in the light of new knowledge and improved technology as well as with regard to equality of treatment. The aim should be the elimination of the risk or its reduction to the greatest extent possible, raising the level of protection for all workers, regardless of sex.
A number of countries prohibit in general terms the employment of women in work or processes involving exposure to hazardous agents or toxic substances, although in some cases this protection is limited to pregnant women. Specific provisions on work involving exposure to lead and its products, benzene and ionizing radiations are quite common. Those provisions concerning exposure to lead products were usually adopted much earlier than those relating to benzene or radiation protection, and the latter tend to distinguish more precisely between prohibitions and limitations placed on all women and those placed on pregnant women or on women of reproductive age. Work involving exposure to lead and its products is prohibited to all woman in many countries, including China, Luxembourg and the United Arab Emirates. Only exceptionally is its scope limited to pregnant or nursing women, as in Belgium and Sweden, or to women of reproductive age. In contrast, the employment prohibition relating to exposure to benzene is usually limited to pregnant or nursing women as in France, Guinea, Poland and Spain.
As regards work involving radiation exposure, the number of cases where such work is prohibited, either to women in general or to pregnant or nursing women, is very limited. Most provisions simply set maximum exposure limits at lower levels for women of reproductive age than for male workers, as in Canada, Ecuador and Venezuela, and even lower levels apply to pregnant women, as in Brazil, Greece, Japan, Switzerland, Tunisia and the United Kingdom. Internationally agreed guidelines on protection against radiation state that notification of pregnancy should not be considered a reason to exclude a female worker from work. Instead, the employer should adapt the working conditions in respect of occupational exposure to ensure that the embryo or foetus is afforded the same broad level of protection required for members of the public. The guidelines also state that employers shall make every reasonable effort to provide alternative employment when a worker may no longer continue in employment involving occupational exposure. In addition, employers must provide female workers with appropriate information on the risks of exposure during pregnancy to the foetus or embryo; the importance of early notification of pregnancy; and the risk to an infant of ingesting radioactive substances through breast-feeding.7
Exposure to toxic chemicals, biological agents, heavy metals and ionizing radiations are a source of deep concern to workers of child-bearing age, since it has been linked to an increased incidence in spontaneous abortion, stillbirth, foetal malformation and childhood cancer. The mutagenic, teratogenic, carcinogenic and embryo-toxic effects of such substances occur at different stages in pregnancy, and in some cases, pre-pregnancy exposures of either parent may be implicated in negative outcomes.
A survey carried out in the United States in 1983 found that workers were exposed to more than 1,100 chemicals which had been identified as hazardous to reproductive health. These included various heavy metals, pesticides, organic solvents, waste anaesthetic gases and some anti-cancer drugs. Unfortunately, however, reliable information on the reproductive health impact of many substances trails far behind the expansion in their use in the workplace. Most of the 70,000 chemicals currently in commercial use have never been tested to assess their effects on human reproduction or other hazardous characteristics, according to the Occupational Safety and Health Administration of the United States.8 This is clearly an area worthy of further study.
Targeted protection for pregnant women and nursing mothers
In many countries, the law provides that pregnant women and nursing mothers may not be allowed to do work that is "beyond their strength", which "involves hazards", "is dangerous to their health or that of their child", or "requires a physical effort unsuited to their condition". Such general prohibitions, however, can present problems of implementation in the absence of a clear, agreed methodology for the determination of the degree of exposure associated with a particular job and an individual woman's capacity to perform the work without risk to her health or that of her child. The respective roles of the employer, the labour inspector, the occupational health physician, the woman's doctor and the worker herself must be defined in order to guarantee the protection of the worker and her child.
The modification of work duties is one approach to dealing with jobs which require great physical effort. Some 20 countries apply stricter regulations with regard to the manual transport of loads by pregnant women and new mothers than for women in general. These are very common in French-speaking countries of Africa, where women during pregnancy and within three weeks after their return to work following childbirth are prohibited from carrying any load.
In many countries, pregnant women and nursing mothers employed in dangerous or unhealthy work are entitled to transfer to another type of work or to have their employment terminated with compensation pay in lieu of notice when the work they are performing is medically determined to be beyond their strength or detrimental to their health. Transfer may also be available from work that is not dangerous in itself but which a medical practitioner has certified to be harmful to a particular woman's state of health, as in France. In Canada and Switzerland, a transfer is possible at the request of the worker concerned. Where the law enables the employer to suggest a transfer, if there is a disagreement between the employer and the worker, an occupational physician will determine whether there is any medical need for changing jobs and whether the worker is fit to take up the job that has been suggested to her. Usually, either the labour inspector or the woman herself is empowered to request such a medical evaluation.
Transfer options for both men and women exposed to reproductive hazard have been adopted in the European Union, Finland and the United States, among others. Such transfer policies must be implemented without penalty in terms of pay and seniority and should provide the right to reinstatement when the overriding need for protection has ceased to exist.
Early notification of pregnancy is essential to enable employers to adapt the woman's working conditions appropriately or to reassign her to less hazardous work. However, unless a woman is confident that her employment is secure, she may wish to disclose her condition as late as possible. Some women observe that knowledge of her condition might adversely affect her treatment on the job or result in dismissal. Unfortunately in many workplaces today transfer options do not exist and pregnant women may be fired from their jobs rather than provided with alternative, non-hazardous work. Economic necessity may cause pregnant women to stay on the job, despite the risks entailed.
A further consideration is that providing early notification of pregnancy constitutes an invasion of privacy. A recognition of the right to privacy is implicit in the legislation of Venezuela, where it is unlawful for an employer to submit a woman to pregnancy tests, but a woman may request such tests to be made if she wishes to avail herself of the protective measures available to pregnant women. The risks inherent in particular work settings and the benefits of early notification need to be assessed in order to establish the appropriate balance between the need for protection and the right to privacy.9
In a few countries, precautions are taken to ensure compliance by the employer with safety and health obligations towards pregnant workers. For example, in Austria, the employer is required to notify the labour inspector or another competent labour protection authority of a worker's pregnancy. In Paraguay, the law requires the Social Security Institute or the Ministry of Public Health to countersign the medical certificate. In Brazil, the employer must countersign the certificate, which serves to prove that he or she was duly informed of a worker's condition.
The EU Directive states in its preamble that measures concerning the protection of health of pregnant and nursing workers "would serve no purpose unless accompanied by the maintenance of rights linked to the employment contract, including maintenance of payment and/or entitlement to an adequate allowance".
A number of countries seek to ensure that transfers due to health and safety reasons do not unduly prejudice a worker's earnings or employment rights. Often the law states that the worker must retain her former salary even if the salary of the post she is transferred to is lower. In the Lao People's Democratic Republic, the woman keeps her former salary during a three-month period, and is then paid at the rate corresponding to the job she is actually performing. In the Russian Federation, where a suitable post is to be given to a woman who can no longer perform her regular work, she retains her salary during the period in which a new post is being sought. In Romania, the difference between the two salaries is paid by social security, an arrangement which avoids the cost of maternity protection being borne by individual employers. France is among the countries which stipulate that the transfer is temporary and that the worker must be reassigned to her former job when she returns from maternity leave or at a specified time thereafter.
Towards a mother-friendly workplace
The promotion of breast-feeding has become a part of national and international health policy for compelling medical reasons. Exclusive breast-feeding can contribute to significantly reducing the incidence, severity and duration of common illnesses among newborns, in particular upper respiratory infection, gastrointestinal infection and otitis media. Indeed, medical authorities recognize exclusive breast-feeding, beginning immediately after birth and continuing for four to six months, as the optimal means of ensuring the full and healthy development of the child.10 Breastmilk is a complete and balanced food and contains both antibodies and antibiotic properties which provide important immunological protection against infection.
The health benefits of breast-feeding for mothers are also being increasingly recognized. These include immediate benefits, such as a reduction in postpartum haemorrhage and a more rapid return to normal weight. In the medium term, exclusive breast-feeding results in a temporary reduction in fertility, which contributes to child-spacing. In the long term, there is a lower lifetime risk of breast cancer and ovarian cancer for mothers who breast-feed their infants.11
While these health benefits are important in themselves, they are matched by economic returns at the national and enterprise levels as well as in the family budget, when breast-feeding is supported in policy and practice through public health services, employers willing to accommodate the needs of nursing mothers and by women who decide to combine their return to work with their desire to nurse their children.
At the national level, the economic impact is mainly felt in reduced demand for curative health services for mothers and babies and the productivity gains derived from a healthy labour force. These are important factors since women in their child-bearing years are the fastest growing segment of the labour force in many countries. In recent years, attention has also focused on the economic costs of importing infant milk substitutes. National lactation policies have been introduced in a number of countries both to reap the health benefits of breast-feeding and to reduce the current expenditure of foreign exchange on imported breastmilk substitutes.
In enterprises which have instituted mother-friendly policies and practices, the economic benefits are perhaps first measured in terms of reduced health insurance costs. The results of internal research carried out by Kaiser Permanente, a major health maintenance organization in the United States, anticipated that policies to support breast-feeding in the workplace would not only optimize the long-term health of the infants and mothers concerned, but would significantly reduce health costs by reducing the need for medical consultation, prescription drugs and hospitalization of infants in the first year of life.12
Lower absenteeism, increased employee loyalty and a higher rate of return to work after childbirth were among the additional benefits achieved by the Los Angeles Department of Power and Water, a utilities company with some 11,000 employees. Until their breast-feeding support policy had been introduced, the Department had been losing an estimated US$1 million annually due to non-return to work after maternity leave, and annual health care costs were approximately US$70 million. Once the support programme was in place, the Department saw absenteeism decline by 20 per cent and health care claims drop by 35 per cent. Active support for breast-feeding employees resulted in a US$7 reduction in expenditure for each dollar invested.13
Many mothers choose to wean their infants before they return
to full-time work. For others, however, breast-feeding continues for several
months after their return from leave. These employees may require special consideration
from their employers with regard to the adaptation of working time and the provision
of nursing facilities, which go beyond the minimum requirements of the law.
Corporate lactation programmes, which provide prenatal counselling and workplace
support for breast-feeding, are increasingly seen as a
cost-effective investment to increase employee morale, minimize absenteeism and reduce turnover. In addition, such programmes are seen by many employees as supportive of their efforts to balance professional and family responsibilities.
Nursing breaks in the workplace
The Maternity Protection Convention, 1919 (No. 3), states in Article 3(d) that a woman shall "if she is nursing her child, be allowed half an hour twice a day during her working hours for this purpose".
The Maternity Protection Convention (Revised), 1952 (No. 103), extends this protection by stating in Article 5(2) that "interruptions of work for the purpose of nursing are to be counted as working hours and remunerated accordingly in cases in which the matter is governed by or in accordance with laws and regulations; in cases in which the matter is governed by collective agreement, the position shall be as determined by the relevant agreement". Article 5(1) states that the time or times allowed for nursing breaks are to be prescribed by national laws or regulations.
Special breaks for nursing mothers are well-established in legislation worldwide, with more than 80 countries making explicit provisions. In about half the countries providing nursing breaks, specific mention is made of the fact that such breaks are in addition to normal rest periods. The law usually states that nursing breaks are to be considered as working time and remunerated accordingly, although in a number of countries this is not specified. In Japan, for example, the law calls for remuneration to be handled through collective bargaining.
The vast majority of countries granting nursing breaks provide for one hour of nursing time per day, often divided into two 30-minute periods. In other countries, workers may choose to have more frequent, but shorter, breaks. In Haiti, for example, women can choose between two 30-minute breaks or a break of 15 minutes every three hours. In a few countries, no guidance is given as to the duration of the breaks, while in others, such as Indonesia and Switzerland, the law merely calls for the provision of "the necessary time off". In Colombia, the employer is required to grant more than the statutory two 30-minute paid breaks per day if the worker provides a medical certificate explaining the reasons why more breaks are needed. In China, a nursing mother may have an additional 30 minutes per day per child in the event of multiple births.
The duration of nursing breaks may be extended if no nursery facilities are provided by the employer at the workplace. In the Netherlands, for example, two 45-minute breaks are granted if a special nursing room is provided on site, whereas if the mother returns home to nurse, her entitlement is up to one-quarter of her total normal working time. In Italy and Venezuela, the statutory provision of two 30-minute breaks is extended to two one-hour breaks, in the event that there is no on-site nursery available. In some countries, nursing breaks may be converted into a reduction in working time to allow for late arrival or early departure from the workplace. In practice, employers often agree that the time available for nursing breaks may be used to enable mothers to come in early or leave late, an arrangement which has a statutory basis in Estonia, Norway and Romania.
The term "nursing breaks" suggests that time off is provided to women who breast-feed, although in some countries mothers who bottle-feed would also appear to be eligible. For example, in the Lao People's Democratic Republic, nursing breaks are available to women to "nurse or take care of" their child. Nursing breaks are available to the father under certain conditions, for example in Italy, where they may take nursing breaks if the mother dies or is unable to attend to the child because of a serious illness. In Spain, mothers and fathers have the same right to take nursing breaks.
The period during which nursing breaks are granted is often set at six months, as in Honduras; one year, as in Dominican Republic, France, Guinea-Bissau, Republic of Korea and Mozambique; 15 months, as in Chad, Madagascar and Mali; or even more. The Islamic Republic of Iran, for example, grants nursing breaks for up to two years. In some countries, the period for nursing is limited by such expressions as "for the period of lactation", "until the child is weaned" or "as necessary"; in others, no period is set at all. Argentina, Brazil and Guatemala are among those countries which allow the nursing period to be extended upon the recommendation of a medical practitioner.
The Maternity Protection Recommendation, 1952 (No. 95), urges that provision be made for the establishment of facilities for nursing or day care. Regulations on the provision of a special nursing room have been identified in more than 20 countries, mainly in Africa, Asia and Latin America. Such regulations usually apply to all sectors of activity, but only to those enterprises employing a minimum number of women. The minimum may be as high as 100 as in Egypt, but is generally set at 25, as in Côte d'Ivoire and Madagascar; at 30, as in Costa Rica and Nicaragua; or at 50, as in the Central African Republic, Chad, Ecuador, Morocco, Nepal and Tunisia. China provides that an enterprise with five nursing mothers shall take steps to set up a nursing room. As noted earlier, a number of countries adapt the length of time allowed for nursing breaks to the presence or absence of nursing facilities on-site.
In a limited number of countries, a special rest room is to be provided only for pregnant women or nursing mothers, as in China. Cameroon specifies that the separate nursing room must be provided with seats, drinking water and facilities for heating bottles and food. Even where legislation does not require employers to provide nursing facilities, many enterprises choose to maintain an on-site nursery or a quiet room, where nursing mothers may express their milk during the workday for later use at home. Typically, a firm would set aside a room where employees can express their milk and store it in a refrigerator. It might also provide a manual breastpump and insulated boxes to carry the breastmilk home. Such facilities are much appreciated by working mothers who choose not to transport their babies to the workplace, but are unable to return home during their nursing breaks.
Unfortunately, many worksites still lack clean, secure and well-maintained facilities for breast-feeding or milk expression. As a result, nursing mothers may be forced to choose between weaning their infants earlier than recommended or using the unsanitary conditions which prevail in workplaces, toilet areas or locker rooms. Both options raise legitimate health concerns. Furthermore, unless nursing facilities are clearly designated and appropriately situated, nursing mothers may suffer a lack of privacy and security from unwarranted intrusion. The physical equipment needed for a nursing room is minimal. It includes tables, chairs, clean running water, electricity and, ideally, a refrigerator for the storage of expressed milk. Nonetheless, many workplaces still fail to provide such facilities.
1 For a full discussion of these trends and issues, see ILO: Special protective measures for women and equality of opportunity and treatment, Meeting of Experts on Special Protective Measures for Women and Equality of Opportunity and Treatment, document no. MEPMW/1989/7 (Geneva, 1989).
2 The Protocol of 1990 to the Night Work (Women) Convention (Revised), 1948 (No. 89), retained the prohibition of night work for women workers during a period before and after childbirth of at least 16 weeks, of which at least eight weeks must be before the expected date of childbirth, but allowed for the lifting of this prohibition at the express request of the woman worker concerned on the condition that neither her health nor that of her child would be endangered.
3 Conditions of Work Digest. Woman workers. Protection or equality? (Geneva, 1987), Vol. 6, No. 2.
4 Council Directive 92/85/EEC of 19 October 1992 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 breast-feeding, in Official Journal of the European Communities (Brussels, 28 November 1992), Vol. 35, No. L.348, pp. 1-7.
5 Originally adopted in 1951 and still valid today.
6 Council Directive 92/85/EEC of 19 October 1992 and its annexes, op. cit.
7 International Atomic Energy Agency: International basic safety standards for protection against ionizing radiation and for the safety of radiation sources, Safety Series No. 115 (Vienna, 1996), pp. 35-36. These standards were jointly sponsored by the ILO, FAO, IAEA, OECD/NEA, PAHO and WHO.
8 United States Department of Labor, Occupational Safety and Health Administration: Reproductive hazards at http://www.osha.gov/oshinfo/priorities/reproductive.html, 14 March 1997, 3 pages.
9 See ILO: Protection of workers' personal data: An ILO code of practice, Geneva, 1997. For an extensive review of policies and practice with regard to privacy issues, see ILO: Conditions of Work Digest, three-part series on workers' privacy [Part I: Protection of personal data (Vol. 10, No. 2, 1991); Part II: Monitoring and surveillance in the workplace (Vol. 12, No. 1, 1993); and Part III: Testing in the workplace (Vol. 12, No. 2, 1993)].
10 The World Health Organization recommends that infants should be fed exclusively on breastmilk from birth up to the age of 4 to 6 months; they should be given no other liquids or solids than breastmilk (not even water) during this period.
11 P. van Esterik and L. Menon: Being mother-friendly: A practical guide for working women and breast-feeding (Penang, World Alliance for Breastfeeding Action, 1996), pp. 10-12.
12 "Costs of NOT breast-feeding: Kaiser Permanente Study", at http://www.winternet.com/~artmama/kaiser.htm, 29 April 1997, 4 pages.
13 Wellstart Intl. and UNICEF: Investing in the future: Women, work and breast-feeding, video presentation on lactation support programmes in the workplace (Washington, 1995).
While maternity leave is designed to protect working women during their pregnancy and recovery from childbirth, other types of leave also exist. Parental, paternity and adoption leave assist parents in adapting to the arrival of a child and allow them to find a better balance between family and work responsibilities. This chapter analyses the legislation regulating these types of leave and its practical effectiveness.
The way in which parenting is organized is an immediate concern for a large part of the workforce. The 1980s saw an increase in dual-earner households with young children, whose parents were both working full time. This reality has created a growing demand for policies to help provide adequate care for these children. Women's desire to remain in the workforce through their child-bearing years, coupled with the recognition of the importance of careful nurturing during the child's early years, the shortage of good quality out-of-home child care facilities and costs, have forced the search for alternative policy options.
Moreover, the creation of conditions that enable workers to choose the type of employment best suited to their individual family circumstances, free from discriminatory constraints, is fundamental to the principle of equality of opportunity and treatment in employment. The International Labour Conference adopted in 1981 the Workers with Family Responsibilities Convention (No. 156) and Recommendation (No. 165). Because measures to allow men and women to harmonize their work and family commitments are a natural extension of well-accepted principles of equality, Convention No. 156 and Recommendation No. 165 must be viewed as a necessary part of the overall goal of ensuring that every man and woman should have the opportunity to play a full role in social, economic, public and family life.
Recommendation No. 165 provides men and women workers with the right to parental leave in order to take care of their children, while the duration and conditions of such leave should be determined in each country. However, in the Recommendation, parental leave is regarded as part of an integrated approach rather than in isolation from other initiatives, which may contribute to the reconciliation of family and work responsibilities. Other forms of support for employees with family-related responsibilities envisaged in this instrument include the promotion of child care, flexible working hours, progressive reduction of daily hours of work, and the availability of part-time jobs with social benefits or tax relief for workers with family responsibilities.
The right to parental leave
The right to parental leave --a long-term leave to allow parents to take care of an infant or young child -- is widely recognized as an important way of reconciling professional and family life. Children are clearly the most obvious beneficiaries, but the benefits extend to workers, employers and society as a whole.
The welfare of the child is the raison d'être of any scheme of parental leave. Recent results of child development research show that, although every stage of life has its own importance, no stage is more important for shaping an individual's future development and life course than the first three years of life.1 Therefore, social policies directed at very young children and their families -- providing for income, services (care and support) and time for parenting -- are essential for a better balance between family and work responsibilities and for a better beginning for children.
By introducing equal opportunity for both mothers and fathers to take time off for child-rearing, parental leave schemes can also be an effective tool for promoting gender equality. Indeed, it is important to distinguish the physiological demands of pregnancy and childbirth, which only women bear, from the care and nurturing of children, which can be shared by men and women. As noted in a report by an African trade union, "while it is ordained by nature that only women can bear children, there is nothing natural about the fact that in many societies women are expected to bear the responsibility of raising children alone. Women engaged in wage employment in particular face the difficult burden of fulfilling their dual role of mother and worker".2
As the end of the century approaches, many employers will find themselves managing employees whose productivity and availability are directly related to their ability to achieve a balance between their professional and family life. Parental leave may allow firms to make better use of human resources by reducing labour turnover and absenteeism. Employee performance may also improve when the worker returns to work after leave feeling more motivated and less stressed. A study in Germany, commissioned by the Institut für Entwicklungsplanung, found that 90 per cent of companies had experienced no major problems with parental leave or had not noted any significant costs.3 In Belgium, the "career break system" appears to have led to savings in public expenditure. The unemployment benefit saved when unemployed workers replace workers taking leave has been estimated to have reduced public expenditure by BF7.85 billion in 1992.4
A review of the legislation of 138 ILO member States showed that 36 countries -- mainly industrialized countries -- have enacted provisions governing parental leave. Among these, the Nordic countries offer the most attractive policy packages to working parents, with countries such as Denmark or Sweden providing subsidized, high-quality, out-of-home child-care services, along with time for parenting. These arrangements are supported with a high level of compensation for loss of earnings, through parental benefits, family allowances or guaranteed child maintenance.
The approach adopted on the federal level in the United States is significant because it is completely gender neutral. As in Australia and New Zealand, the leave is unpaid. The Family and Medical Leave Act gives covered employees the right to 12 weeks of unpaid leave for specified family or medical reasons. The permitted family reasons include the birth and care of the newborn child of the employee. No distinction is made between maternity or paternity leave and, subject to the employer's approval, the leave may be taken intermittently or as part of a reduced schedule.
In the Central and Eastern European countries, previously extensive child-care systems are being circumscribed through the closure of centres and the exclusion of the population at large through the charging of very high fees.5 A return to traditional values in these countries, as highlighted in a recent sociological study,6 has led many women to welcome the idea of remaining at home, an option which was perceived to be a luxury enjoyed by Western women. Not surprisingly, an "at-home" child-rearing policy has emerged, which is less costly for the State and assures children better care than in poor quality child-care centres. However, it also results in discontinuity in employment for mothers.
Most parental leave schemes typically offer guaranteed return to employment for the mother or the father who takes time off for child-rearing purposes. However, among those countries that provide for parental leave, major differences can be found with regard to the conditions of leave, the payment of benefits and the degree of flexibility afforded to parents. These differences are not only of theoretical interest. How the entitlements are structured is crucial to their success. Thus, while in some countries parental leave schemes have proved to be effective to some extent, in many others the enactment of legislation has not necessarily met the needs of working parents.
In all countries, parents wishing to take parental leave have to meet certain legal conditions in order to be eligible for such leave and benefits. National provisions sometimes explicitly exclude specific categories of workers, such as seasonal workers or workers employed in certain industries or occupations or in small enterprises.
Additional eligibility requirements may come into play as well, mainly concerning previous employment. Although such requirements vary across countries, the common pattern is to require six to 12 months of continuous work with the same employer. Nevertheless, in some countries (for example, Belarus, Finland, Japan, Hungary, Italy, Republic of Korea, Norway, Russian Federation, Tunisia or Ukraine), a qualifying period of previous employment is not required. The increasingly precarious nature of employment is making it more difficult for employees to meet length-of-service requirements, particularly for women who tend to have less job tenure and, at any given age, lower employment retention rates.7 Among the OECD countries, for example, women had more short-term turnover than men in 1991. On average, 22 per cent of employed women had been with their current employer for less than one year.8 In all the countries of the European Union, the rate of temporary employment for women was higher than that for men.9 Finally, while conditions for benefits may be more restrictive than for leave, as is the case in Austria, Iceland and Norway, in some countries entitlement to leave is automatically associated to benefits, as in Germany, Poland or the Russian Federation.
An essential distinction between schemes of leave is whether they are paid or not. When schemes do not guarantee any payment, it is difficult -- if not impossible -- for lower paid workers to take advantage of them. In 11 of the 36 countries which were found to have enacted regulations on parental leave, parents have to be self-reliant in order to be able to take leave, as the State will not provide them with any financial help. Most of the remaining countries offer either a low-paid flat rate (for instance, 600 DM per month in Germany; £55.70 per week in the United Kingdom) or a proportion of wages (30 per cent in Italy and Poland; 50 per cent in Tunisia; 60 per cent in Cuba and Lithuania). Again, the maximum periods of leave and benefit entitlements do not necessarily coincide. In countries such as Canada, Germany, Greece, Netherlands, Portugal and Sweden, the benefits are available for a shorter period than the leave.
However, a number of countries, including France and the United Kingdom, have tried to compensate the absence or low rate of benefits by providing other family benefits aimed at improving the material conditions of children and maintaining, to some degree, the living standards of women. In the United Kingdom, for instance, the vast majority of single mothers are recipients of the Income Support Benefit, and depend on this allowance for subsistence while their children are young.10
An OECD study,11 comparing the take-up rates in countries with a policy of high earnings-related benefits with countries which offer lower or no benefits attached to parental leave, suggests that a strong link exists between earnings replacement rates and take-up rates. In countries such as Denmark, Norway and Sweden, which provide an allowance which compensates to some extent for the loss of wages, parental leave is used by nearly all eligible families.12
Parental leave as a means to equality: The role of fathers
In the vast majority of the countries which offer parental leave, however, it is designed as a family right to be shared between the mother and the father, although it cannot usually be taken by both simultaneously. In Armenia, optional part- or full-time unpaid leave for child care may be granted to either parent, grandparent or relative until the child is 3 years old. Partially paid leave is provided in Azerbaijan to either parent or to another member of the family who looks after the child up to the age of 3. In contrast, in countries such as Cuba, Jordan, Republic of Korea, Mexico, Romania, Tunisia, Turkey and the United Kingdom, only mothers can take leave for child-care purposes.
Nonetheless, even in those countries where men have the possibility of taking parental leave, it is usually the mothers who actually do so. Men's take up-rates are generally low. Studies in Denmark, Finland, Germany and Norway suggest that less than 5 per cent of eligible fathers take parental leave.13 Although, in Sweden, some 24.5 per cent of eligible men took parental leave in 1987, they took only an average of 26 days of leave.14 In France, a 1992 survey of public and private sector workplaces commissioned by the Caisse nationale d'allocations familiales estimated that 99 per cent of parents taking parental leave were mothers.15 In Austria, up until January 1997, among claimants of parental leave 75,912 were women and only 485 were men.16
What are the reasons for this phenomenon? While the traditional social expectations of male and female roles relating to child-rearing undoubtedly play a part, other factors are crucial in explaining the limited utilization of leave entitlements by fathers. The gender inequalities inherent in the labour market and the structure of entitlements contribute to men's infrequent use of leave. In the majority of the cases, fathers take parental leave only when a relatively high level of compensation for loss of earnings exists. Taking into account that occupational and wage structures still tend to favour men, the loss of the father's income places a heavier financial burden on the family, making it difficult to cope. In addition, as the dominant pattern in most countries is a low flat-rate benefit, parental leave is currently a viable option only for upper middle-class, two-parent families. Most commonly, the man provides the primary economic support for the family while the mother cares for the child at home. Parental leave, in this case, may contribute to maintaining, rather than decreasing, gender inequalities in the labour market.
Specific measures aimed at creating equilibrium between professional and family life are essential for securing job opportunities for women. However, for such measures to be more effective, they may need to be supplemented with action focused on tackling the problem of horizontal and vertical segregation and wage discrimination. In addition, to enable both fathers and mothers to organize parental leave in a way that best suits their individual circumstances, more flexible arrangements need to be implemented.
To encourage fathers to take leave, countries such as Belgium, Denmark, Greece, and the Netherlands have allotted an individual and "non-transferable" portion of leave to each of the parents. This has also been the approach of the recently enacted European Union Directive 96/34/EC,17 which transposes into European Union law the framework agreement concluded by the European-level social partners. Since most of these regulations have been in force for a relatively short time, it is too early to make any definitive statements about the long-term impact of these instruments on women's career patterns.
Security against dismissal is vital in order to avoid weakening parents' ties to the labour market. Most schemes make these safeguards an integral part of leave, although with a different degree of protection. While employees taking parental leave have the right to be re-engaged in a similar position in Germany, New Zealand, Portugal, Russian Federation and the United States, in other countries -- for instance, in Belarus, Cyprus and the Republic of Korea -- they are entitled be to be reinstated in the same position they previously held. In Spain, parents have the right to reinstatement during the first year of leave, and a preferential right if they decide to take the remaining two years of leave.
Duration of parental leave
Parents in many countries are able to take time off from work to stay with their children for an extended period of time. Azerbaijan, Belarus, Finland, France, Germany, Norway, Poland and Spain offer parents the longest potential leave with their children (three years), but the most common leave period is one year, as in Austria, Denmark, Israel, Japan, Republic of Korea, New Zealand, Romania, Russian Federation, Slovenia, Sweden and the Ukraine. The United Kingdom provides one year and one month. In Canada, Iceland and Turkey, parental leave may last for six months. In Cyprus and the United States, parents are entitled to three months of leave.
Additional time for parenting may be granted at industry or enterprise level. In Germany, retail industry employees with at least four years of service may take up to four years of leave, with a sharing of the leave between parents working in the same establishment. Returnees are entitled to come back to an equivalent job and the years of parental leave are counted for the purpose of pay progression. Under an agreement with a German white-collar trade union in force since 1 January 1996, IBM grants employees with 18 months' continuous service an extension of parental leave up to a maximum of ten years in the case of several children. The company commits itself to provide "comparable employment" on return, and reserves the right to offer work at a nearby plant if no permanent position is vacant at the original workplace.18
These different periods of leave have a significant impact on peoples' ability to return to work. Short periods of leave may be exhausted before the parent necessarily wishes to return to work, often leaving a difficult choice between whether to continue to care for the child without a job (and without guarantee of reinstatement) or to place the child in day care and return to work. In contrast, long periods of leave may lead to the erosion of skills and render it more difficult for working parents to re-enter the labour market, unless suitable retraining is provided. Under the Spanish parental leave scheme, employees have the right to undergo training courses during their leave, and employers are expected to offer appropriate training opportunities, particularly as the employee's return to work approaches.
Flexibility in leave provisions: Part-time, "fractioning" and other arrangements
Flexibility in leave provisions allows parents to organize their time away in the manner that best suits their family's needs. Since 1994, Norway has built flexibility and choice into its parental leave system, allowing parents a total time allotment which may be taken in some combination of full-time and part-time leave, with cash benefits paid accordingly. Various options for organizing leave are based largely on employees' preferences. For example, parents may choose to work 50, 60, 75, 80 or 90 per cent of normal hours. If employees choose a longer working day, then a lower rate of the compensatory benefits would apply. Thus, employees have great freedom to determine care arrangements most suitable to their own circumstances.
A certain degree of flexibility has been introduced in Croatia, France, Finland, Norway, Russian Federation, Slovenia, Sweden and the Ukraine, where leave programmes allow working parents to continue work on a part-time basis. Another option -- available in Austria, Spain, Finland, Norway and Sweden -- is for parents to reduce their working hours until their children enter compulsory schooling. These arrangements allow working parents to remain connected to the labour market, prevent the erosion of skills and facilitate the transition to full-time employment once their children start school.19
In some countries, parental leave continues over a specified period of time immediately after maternity leave. In others -- as Germany, Greece, Poland, Romania, Sweden and the United States -- parents have the possibility of fractioning the leave period instead of taking it all at once. Such provisions may facilitate the up-take rate of fathers, who seem to be more likely to take leave as children get older. Among Swedish fathers who took parental leave in 1989/90, 21 per cent of them did so to take care of a child under 6 months, 35 per cent to care for a child aged 9 to 11 months, and 50 per cent to take care of a child over 14 months of age.20
In the majority of the countries, fathers are entitled to take a certain number of days off at the time of the child's birth. This is called paternity leave, which is traditionally designed to enable the father to spend some time with the newborn baby and the mother, to participate in family celebrations related to the birth, and to take care of formalities. The length of this leave ranges from one to three days in Algeria, Argentina, Democratic Republic of Congo, Egypt, Guatemala, Paraguay, Saudi Arabia, Spain and Tunisia, whereas two weeks are provided in Denmark, New Zealand and Norway. In a few countries, such as Mongolia, Netherlands, Romania and Viet Nam, the length of the period of leave is not specified. In the Netherlands, it is "a period of time considered to be fair". In Bangladesh and Myanmar, men are entitled to "casual leave", which is ten days and six days respectively, for unspecified purposes. In a number of African countries, including Benin, Cameroon, Central African Republic, Chad, Comoros, Congo, Djibouti, Gabon, Madagascar, Mali, Mauritania and Togo, men are entitled to ten days' leave for "family events concerning the worker's home".
In those countries where there is no legal right to paternity leave, such as Costa Rica, Honduras, Mexico or the Philippines, collective agreements in some economic sectors tend to include provisions to that effect. In Uruguay, where only civil servants are entitled to paternity leave, some agreements at enterprise level extend the right to other workers. In the United Kingdom, in the absence of statutory provisions, some unions have secured the father's right to paternity leave through collective bargaining. Under private sector collective agreements, paternity leave lasts an average of three days, while in the public sector, the average length is four to five days.21 In Bahamas, a collective agreement between the Bahamas Hospitals Board and the Bahamas Public Services Association provides for a maximum of 20 days of unpaid paternity leave in any one year.
Employees who decide to adopt a child may not be entitled to benefit from a leave policy designed for women and men who have a biological child. However, many countries have created an entitlement to leave for workers who adopt children, with provisions close to those for maternity, paternity and parental leave in the country concerned.
The right to adoption leave generally starts when the child arrives in the home, and -- by eliminating the compulsory prenatal leave allotted to natural mothers -- the entitlement may amount to less total time. In Denmark, adoption leave is four weeks shorter, and in Finland, 41 days shorter than for couples caring for their own newborn. In France, a female employee who is taking care of a child with a view towards adoption is entitled to a maximum of ten weeks' leave from the date the child arrives in the home, 22 weeks in the case of multiple adoptions, and 18 weeks if the adopted child brings the number of children in the family up to three. In Australia, Finland, Iceland, New Zealand and the former Yugoslav Republic of Macedonia, parents have a right to adoption leave that is analogous to leave for the birth of a child under the parental leave provisions.
1 S.B. Kamerman and A.J. Kahn: "Family policy and the under-3s: Money, services, and time in a policy package", in International Social Security Review (Geneva), Vol. 47, Nos. 3-4, 1994, p. 34.
2 National Union of Eritrean Workers: General conditions of Eritrean women factory workers (A case study of Asmara area), (Addis Ababa, 1995), Ch. 3.4.
3 European Commission Network on Childcare: Leave arrangements for workers with children: A review of leave arrangements in Member States of the European Union and Austria, Finland, Norway and Sweden, document no. V/773/94-EN (Brussels, 1994), p. 32.
4 ibid., p. 34.
5 European Parliament. Directorate-General for Research: Central and Eastern European women: A portrait, Women's Rights Series No. W-8 (Brussels, 1995).
7 OECD: "Chapter 5: Long-term leave for parents in OECD countries", in Employment Outlook (Paris, July 1995), p. 179.
8 OECD: Employment Outlook (Paris, July 1993), p. 134.
9 J. Rubery, M. Smith and P. Fagen: Occupational segregation of men and women and atypical work in the European Union, document no. V/5619/95-EN (Brussels, European Commission, 1995), p. 1.
10 Kamerman and Kahn, op. cit., p. 36.
11 OECD: Employment Outlook, 1995, op. cit., p. 187.
12 European Commission Network on Childcare: Leave arrangements for workers with children, op. cit., pp. 25-26.
13 OECD: Employment Outlook, 1995, op. cit., p. 187.
15 European Commission Network on Childcare: Leave arrangements for workers with children, op. cit., p. 13.
16 Information provided to the ILO by the Women's Division of the Austrian Metal Trades, Mining and Energy Workers Union, March 1997.
17 "Council Directive 96/34/EC of 3 June 1996 on the framework agreement on parental leave concluded by UNICE, CEEP and the ETUC", in Official Journal of the European Communities (Brussels, 19 June 1996), No. L.145, pp. 4-9.
18 Incomes Data Services: Pay and conditions in Germany 1996, IDS International Documents (London, 1996).
19 H. Wilkinson and I. Briscoe: Parental leave: The price of family values? (London, DEMOS, 1996).
20 European Commission Network on Childcare, Leave arrangements for workers with children, op. cit., p. 26.
21"Paternity leave continues to improve", in Labour Research (London, Jan. 1987), Vol. 86, No. 1, p. 32.
Among the instruments adopted at the First Session of the International Labour Conference was the Convention concerning the employment of women before and after childbirth, 1919 (No. 3). Convention No. 3 laid out the basic principles of maternity protection: the right to leave, the right to medical benefits and the right to income replacement during leave. Leave was to be provided up to six weeks before confinement upon production of a medical certificate and was mandatory for the six weeks following confinement. Medical benefits were to include free attendance by a doctor or certified midwife. Cash benefits were to be sufficient for the full and healthy maintenance of mother and child, the exact amount being determined by the competent authority in each country. Benefits were to be provided either out of public funds or by means of a system of insurance. The right to leave was reinforced by the explicit prohibition of dismissal during a woman's absence on maternity leave or at such time that the notice would expire during such absence.
The Maternity Protection Convention (Revised), 1952 (No. 103), retained the same principal elements of protection, i.e. the right to maternity leave, medical care and cash benefits, but the means and manner of providing these benefits were made more explicit. The 12-week minimum leave period was to include a period of mandatory postnatal leave of at least six weeks. Additional leave was to be provided before or after confinement in the event of medically certified illness arising out of pregnancy or confinement. Medical benefits were to include prenatal, confinement and postnatal care by qualified midwives or medical practitioners, as well as hospitalization if necessary. Freedom of choice of doctor and of public or private hospital were to be respected. As regards cash benefits, a minimum income replacement rate of two-thirds of the woman's previous earnings was specified for those benefits derived from social insurance. Payroll taxes were to be paid on the basis of the total number of workers employed without distinction of sex. The principle of non-liability of the employer was made explicit. The prohibition of dismissal during a woman's absence on maternity leave was retained, but not further strengthened.
Neither Convention No. 3 nor No. 103 has obtained a significant number of ratifications. Only 33 member States have ratified Convention No. 3, which remains open to ratification; 36 have ratified No. 103. Of these, 16 member States have ratified both instruments, bringing the total number of countries to have ratified to 53.
The preceding review of national law and practice has demonstrated that maternity protection is as high a priority for individual member States as it is for the Organization as a whole. The scope of protection is gradually being extended, although coverage is still not universal in many countries. Leave provisions often exceed the 12 weeks stipulated in Convention No. 103. Almost all member States have special measures to protect the health and safety of pregnant women and nursing mothers at the workplace, but approaches to protection vary widely from generalized gender-based prohibitions to the adaptation of working conditions according to individual needs. Parental leave arrangements in some countries provide encouragement to the sharing of child-rearing responsibilities between father and mother, but when such leave is taken predominantly by women, it may simply extend their absence from the workplace following childbirth. Employment is protected to varying degrees in many member States, though nowhere has discrimination on the basis of maternity been entirely eliminated.
In important ways, however, member States diverge in law and practice from the provisions of Convention No. 103. A large number of women remain unprotected due to sectoral or occupational exclusions, such as agricultural or domestic workers, for example. Cash benefits at some level are granted in most countries, in some through social insurance or public funds, in others directly by employers, and sometimes through mixed systems. It will be recalled that Convention No. 103 explicitly prohibits employer liability for the payment of benefits. Medical benefits in many countries are provided predominantly through public health or social security institutions, in which case individual choice of doctor and hospital may be limited. In some countries, employers bear the cost of medical care.
As evidenced in this report, laws designed to protect the health of mother and child and the employment rights of working women figure prominently in the legislation of almost every ILO member State examined. Yet many countries find it difficult to ratify highly prescriptive instruments. It has been found in the past that member States whose law and practice are in conformity with the essential provisions of an international instrument are sometimes unable to ratify or accept that instrument formally by reason of comparatively minor divergences between its precise terms and their national law and practice. These divergences may relate to the scope of the instrument or to details of application of the basic principles.
A spirit of realism must therefore imbue the provisions of any new Convention, if it is to meet the needs and expectations of most, if not all, ILO member States. A focus on commonly held principles, coupled with sufficient possibilities for governments and the social partners to work together to achieve goals in accordance with national conditions, may prove an effective means of ensuring safe motherhood and equitable employment conditions for working women.
The questionnaire has been devised with these considerations in mind. The fundamental protections on which wide international consensus has developed over the years, namely the right to leave, medical benefits and income replacement, may form the main content of the possible Convention. With regard to length of leave, the questionnaire raises the possibility of a dynamic approach, setting 12 weeks of leave as the minimum standard -- a target already achieved by a large number of member States -- but also providing for periodic national tripartite consultations to examine the possibility of extending the period of leave. Such an approach would provide encouragement for those who are able to surpass current provisions to do so.
A similarly dynamic approach may be possible with regard to cash benefits. Their main purpose -- the full and healthy maintenance of mother and child in accordance with a suitable standard of living -- is retained from Convention No. 103, but some flexibility in achieving this goal is possible in two important ways. First, the question is raised as to the standard rate of income replacement, i.e. whether it should be at the rate of two-thirds of a woman's previous earnings or of the amount taken into account for computing benefits or, alternatively, at a flat rate of an appropriate amount. Once again, periodic national tripartite consultations might examine the possibility of increasing the amount or rate of benefits. The possibility is also raised of permitting ratification of the Convention by a Member which provides cash benefits at a lower rate if (a) that Member's economy and social security system are insufficiently developed, and (b) if that Member provides maternity cash benefits at a rate no lower than those payable for sickness or temporary disability in accordance with national law and practice. In that event, the Member would describe in its reports on the application of the Convention the measures taken with a view to raising that rate. The second element of flexibility regards the means of financing cash benefits. This question is raised in the section of the questionnaire relating to the content of a possible Recommendation, with a view to allowing for variations in law and practice in this regard. The questionnaire raises the possibility of financing (a) through compulsory social insurance, (b) through public funds, and (c) in a manner determined by national law and practice.
A further question related to the content of a Convention raises the possibility of strengthening employment rights to guard against unfair dismissal and to ensure the right to return to work after leave. Access to employment-related protections, such as leave and medical and cash benefits, might thereby be secured.
Questions regarding the content of a possible Recommendation cover a number of the issues raised in this report where national law and practice vary widely, but where consensus might be achieved in terms of setting desirable targets. These relate to the length, distribution and possible extensions of leave; the level and extent of benefits; the financing of benefits; employment protection; health protection; provisions for nursing mothers; and related types of leave.
Members are invited in their replies to indicate any provision regarding the possible content of either a Convention or a Recommendation which they would prefer to include in the other instrument. Members are further invited to indicate any particularities of national law and practice with regard to maternity protection which, in their view, are liable to create difficulties in the implementation of an international instrument and to make specific suggestions as to how these difficulties might be overcome.
Updated by HK. Approved by RH. Last update: 26 January 2000.