Report of the Committee on Maternity Protection
Submission, discussion and adoption
Original Spanish: The PRESIDENT — The first item on our agenda today is the submission and discussion of the report of the Committee on Maternity Protection which is to be found in Provisional Record No. 20.
I now give the floor to Ms. Samuel, Reporter of the Committee on Maternity Protection, to present the report.
Ms. SAMUEL (Government delegate, Cyprus; Reporter of the Committee on Maternity Protection) — I am privileged to serve, for the second time, as the Reporter of the Committee on Maternity Protection, which was asked to revise the Maternity Protection Convention (Revised), 1952 (No. 103), and its accompanying Recommendation, 1952 (No. 95).
The Committee was faced with an especially difficult task this year. It was required to come to an agreement in a very short period of time on a new instrument that would provide the most effective protection possible, be forward looking and have better prospects of ratification and, more importantly, of implementation in the different countries.
Following the first discussion in June 1999, and throughout this past year, there has been a great deal of uncertainty about what the final outcome of this process would be.
As a result, a high level of energy was exhibited by members of the Committee who vigorously defended their views throughout the sittings. The debate was enriched by the very wide variety of backgrounds and expertise of the Committee members on all sides.
We had in our Committee, members with extensive knowledge and experience covering the full range of areas from social security and occupational safety and health to human rights and gender equality, as well as employment and industrial relations in general.
All members of the Committee understood the particular importance of maternity protection today in a world in which women’s participation in the workforce and their contribution to family income continued to increase rapidly. Therefore, they had only one goal in mind, to agree on instruments that would be an improvement on the maternity standards of 1952.
The major differences in approach were based on differences in understanding what such improvement meant. Many were of the view that there could be improvement only if the previous standards were maintained to the full, and even strengthened through the addition of new kinds of higher levels of protection. For them, it was important to establish a model of best practice to which countries might eventually aspire.
Others considered that an improved Convention was one that would have a good basic level of protection that would be widely applicable in as many countries as possible and that would lead to improvements at the national level. For them, revision did not necessarily mean only raising the previous standards in all respects, but also included removing the obstacles which had hindered ratification of the existing Convention.
That we were able to reach a successful outcome in the end, despite such contrasting approaches, can be attributed to the many members of the Committee, Government, Workers and Employers alike, who were able to achieve a balance in their decision-making at the crucial point of the discussion.
The evidence of this is apparent from the content of the Convention and Recommendation that the Committee is now proposing.
At the outset of the discussion the Employers reaffirmed the importance to them of a revised Convention which should not be overly prescriptive so that it could accommodate the diversity of social and economic conditions of member States. They acknowledged employers’ responsibilities in relation to maternity protection and emphasized the need to balance this with the responsibilities of governments and the women workers concerned.
The need to provide maternity protection, while protecting the employer from direct monetary and operational costs, was a critical element to ensuring that employment opportunities for women would continue to grow.
The Workers, whilst recognizing the importance of ratifications, were quite adamant that the overriding consideration should be the content of protection to be provided in the instruments.
Maternity protection was not only a concern for women and children, but for the future of society as a whole. Such aspirations were echoed by NGOs and other international organizations that were given the opportunity to be present and to share their views in the discussions.
To give you an overall picture of the results of our deliberations I will review the content of the Convention and the Recommendation that the Committee is proposing, and compare it with that of the existing standards.
Let me begin with the Convention. The Preamble of Convention No. 103 was limited to the basics, whereas now we have a comprehensive preamble which sets out the overall objectives of the Convention. It recognizes the need to promote equality for all women in the workforce and the health and safety of the mother and the child. It also recognizes diversity in economic and social development and diversity in enterprises.
The scope of the Convention was of special concern to the Committee. The new Convention applies to all employed women, including women in atypical forms of dependent work, thereby reaching millions of women workers so far excluded.
It is not limited, as in Convention No. 103, to women employed in specified types of undertakings or occupations. All women who perform work in conditions of dependency, including those in disguised employment relationships, whether in the formal or informal sector, are covered.
The possibilities for exclusions have been narrowed down. A member State can exclude only limited categories of workers and this under two specified conditions. It can do so only where, in respect of these workers, the application of the Convention will create special problems of a substantial nature, and only after consulting the representative organizations of workers and employers. It will not be possible to exclude categories of enterprises, for example, on the basis of their size. Convention No. 103 places no obligation on a member State to consult beforehand with representative organizations of workers and employers before excluding workers, nor to demonstrate that the application to them of the Convention would raise substantial problems.
The new provision on health protection added to the proposed Convention was welcomed by all sides. It ensures that pregnant or breast-feeding women are not obliged to perform work which is determined by the competent authority to be prejudicial to their health or that of their children, or which entails a significant risk to their health or that of their children. No provision on health protection existed in Convention No. 103.
Eighty years after the 12-week period of maternity leave was first set in the Maternity Protection Convention, 1919 (No. 3), this period has been extended to a minimum of 14 weeks. Of course, some countries already provide longer leave but 14 weeks was considered to be an appropriate standard to which a large number of countries worldwide could aspire.
The requirement in Convention No. 103 for a minimum of six weeks of compulsory postnatal leave was maintained because of its importance for the health protection of mother and child, but a certain limited flexibility was introduced. A departure is now allowed from this requirement in those countries where a tripartite agreement has been reached at the national level between government and the representative organizations of workers and employers. Where such an agreement is not reached, a compulsory postnatal provision will apply. This takes account of the situation of countries where compulsory maternity leave is considered to be discriminatory against women. Adding their support to that of employers and some governments to the introduction of this flexibility, the workers underlined the strengthened role of the social partners within the framework of social dialogue.
The new Convention also establishes a new right to leave before or after maternity leave, in the case of complications or risks of complications arising out of pregnancy or childbirth. This is a clear strengthening of protection compared with Convention No. 103, which had only made provisions for illness arising from pregnancy or childbirth, leaving complications and risk of complications to its accompanying Recommendation.
The most difficult issue which the Committee faced was that of benefits. For this reason, it decided to refer this at first to a tripartite working party in the hope that it would be able to find a way to accommodate national differences in systems of financing and methods of computing benefits. Even though the Working Party concerning articles 4 to 6 was not able to conclude its work, the debate helped to highlight areas of possible consensus and points for decision. I take this opportunity to thank the Chairperson of the Working Party, Mr. Ron Saunders (Government member, Canada), for his good work.
Convention No. 103 stipulated that maternity benefits could only be financed through compulsory social insurance or public funds. However, many countries have no compulsory social insurance system, or if they do, it is of such limited scope that they rely on employers to finance maternity benefits in whole or in part. Their situation had to be taken into account.
The provision finally adopted regarding financing of benefits was regarded as realistic by both workers and employers. It recognizes that benefits in respect of maternity leave and leave for sickness or complications due to pregnancy or childbirth should be paid through compulsory social insurance or public funds or in a manner to be determined by national law and practice. As before, employers should not be individually liable for the direct cost of maternity benefits paid to the women that they employ.
However, a special provision was inserted to make it possible for members who already had a system of employer financing of benefits prior to the adoption of the Convention, to ratify the Convention or to allow such a system if subsequent agreement was reached at
the national level between governments and representative organizations of employers and workers. This was a key provision of the Convention that reflected great efforts by the social partners to find a true balance of their respective interests in the light of the varied circumstances of member States.
With regard to the level of benefits, the old Convention provided for a minimum of two-thirds of the portion of a woman’s previous earnings taken into account for computing benefits paid by social insurance. No level was fixed for benefits financed by public funds and, of course, no mention was made of benefit levels provided through other funding sources, as these were not permitted.
The proposed Convention has retained the benchmark of not less than two-thirds of the woman’s previous earnings or an amount comparable to this on average, but has extended it to cover all payment systems and all methods of calculation.
Exceptionally, the proposed Convention allows countries whose economy and social security system are insufficiently developed to have the option to pay the same rate for maternity benefits as they pay for sickness or temporary disability. It has also retained the overriding principle of Convention No. 103 that the cash benefits must in all cases be at a level which ensures that the woman can maintain herself and her child in proper conditions of health and with a suitable standard of living.
It should be pointed out that some countries were disappointed with the result of the debate regarding the level of benefits. They would have liked the Convention to provide for benefits equivalent to the full amount of a woman’s previous earnings, just as they did under their own national legislation. However, the goal of full income replacement remains under the Recommendation for the time being while the Convention sets a rate that would permit much wider ratification and which firmly defines a floor for all countries, developed or developing, regardless of how benefits are calculated or of the mechanism for the financing of benefits.
By contrast, Convention No. 103 sets a floor only in the case where cash benefits are provided under compulsory social insurance and where these benefits are based on previous earnings.
This brings me to the next issue: employment protection. The period of protection from dismissal has been greatly extended. The proposed Convention provides for employment protection for the whole period of pregnancy, for the period of maternity leave and leave for maternity related sickness or complications and during a period following return to work. Under Convention No. 103, there was an absolute prohibition of dismissal but it covered only the period of maternity leave. Under the new Convention, protection during this greatly extended period is no longer absolute but dismissal is possible only if it is unrelated to pregnancy or the birth of the child and the consequences of nursing. Furthermore, the proposed Convention provides that the employer bears the burden of proving that the reasons for dismissal were unrelated to maternity. Once again, one might make the comparison with Recommendation No. 95, which included a non-exhaustive list of legitimate reasons for dismissal but contained no provision regarding the burden of proof.
A new provision of the Convention further protects women from discrimination by guaranteeing them the right to return after maternity leave to the same position they had before or an equivalent one paid at the same rate.
Even more importantly, the proposed Convention now has a general requirement that measures must be taken to ensure that maternity will not constitute a source of discrimination in employment. These measures must include prohibition against pregnancy tests when a woman applies for employment, except in cases where such tests are legally required for reasons of health protection.
Taken together, the provisions in the proposed Convention regarding the period of protection, the burden of proof, the guaranteed right of return and protection against discrimination represent a great strengthening of employment security compared to that provided in the earlier instrument.
Paid breaks for breastfeeding were already provided for under Convention No. 103. There is a similar provision under the proposed Convention but, in addition, a woman now is entitled, as an alternative, to a daily reduction of hours of work for breastfeeding. The provision for paid nursing breaks under the old Convention was seen to be an obstacle to ratification for some countries and there was a vigorous debate on the question. In the end, the importance of breastfeeding for the health of the child overrode concern on the part of most Committee members about the problems that might arise in implementing it.
Turning to the proposed Recommendation, I should like to point out that it elaborates on some issues and on others it goes further. For example, it recommends extending the period of maternity leave to 18 weeks, increasing benefits to the full amount of a woman’s previous earnings and providing facilities for nursing. It also recommends parental leave and, when national legislation and practice provide for adoption, extension of the rights under the Convention to adoptive parents.
It would be an omission on my part not to say that the text of the proposed Convention did not satisfy all committee members. Some were not content because in their view the standards set in the new Convention went further than they should and endangered its future. Others, however, felt that in some respect there was better protection under the old Convention. They were disappointed that protection against dismissal was no longer absolute during maternity leave. They would have preferred not to permit any flexibility at all regarding obligatory maternity leave after childbirth, nor with regard to the financing of maternity benefits. In their view, standards should be set in a way that does not allow for exceptions.
Some of these members would have liked Convention No. 103 to remain open for ratification after the new Convention comes into force. But, standard setting is a process requiring a balance of the perspectives and priorities of the different constituents in the various regions. We were constantly reminded of this in the Committee.
Workers’ and Employers’ members approached maternity protection from two different perspectives and governments were constantly in a position of weighing the interests of workers and employers together with their own.
My own personal conviction is, and I hope you will agree, that when all the improvements in protection and the possibilities for implementation are viewed as a whole, the new Convention does represent a considerable step further in the pursuit of social justice.
But once the Convention is adopted, something which I personally recommend wholeheartedly, our work will not be completed. With the help of the Office, we must promote the Convention and make it well understood. This is essential because promotion of the instrument will ensure that the important and far-reaching revision that has been made will have a practical impact on law and practice among member States. In many cases, very practical forms of technical assistance will be needed in a range of areas, particularly that of social security.
Before concluding, I would like to pay tribute again to the excellent chairmanship of Ms. Andersen who, in a very fair and firm way, led the Committee for a second year to a successful conclusion of its work.
Ms. Knowles and Ms. Engelen-Kefer’s deep knowledge of the issues involved and their leadership qualities enabled them to represent the interests of their respective groups in the best possible way. The fact that the Committee was able to accomplish its task was due to the excellent preparation and background papers, prepared by Ms. Dy Hammar, Representative of the Secretary-General, and her team, which everybody acknowledged to be of high quality and great usefulness.
Ms. Dy Hammar and her able team deserve our wholehearted praise and thanks. Their work has demonstrated their commitment to serving the cause of social justice. They all worked very hard, often well into the mornings, to ensure that the meetings ran smoothly and that Committee members received all the assistance that they needed. We were also given valuable advice by the representative of the legal adviser, another very able person, Ms. Dumbia-Henry and support by experts of the Office.
Last but not least, I wish to give credit to my colleagues from all governments who, with their interventions, helped to resolve difficult issues and to produce balanced texts despite the diversity of use and approaches.
I should point out that the text of the proposed Convention and Recommendation before you does not yet include any changes as a result of comments made by delegates concerning the drafting of the instruments. Once the Committee’s report is adopted by the Conference, the Conference drafting committee will meet and look into all of the observations made. The instruments that will be voted on by the Conference tomorrow will be the final versions, amended as necessary by the Conference drafting committee.
Since the 1997 decision by the Governing Body to revise Convention No. 103, and its accompanying Recommendation (No. 95), enormous efforts have been deployed to ensure that these revisions would reflect the interests of governments, employers’ and workers’ organizations around the world.
Maternity protection is a subject which touches all of us deeply. This was clearly evidenced in the massive response received by the Office to its initial questionnaire. A response level which exceeded the previous record set by the preparatory work on the worst forms of child labour.
Two years of deliberation in the Com
mittee on Maternity Protection, as well as intensive discussions at the national and regional level, have led to the text which we will be asked to vote upon tomorrow. I commend this text to you and urge you to confirm that the efforts invested have been worthwhile.
Ms. KNOWLES (Employers’ delegate, New Zealand; Vice-Chairman on the Committee in Maternity Protection) — It has not been an easy task being a member of the Employers’ group discussing the revision of the Convention on maternity protection at work. Each of us on that Committee is a daughter or a son, most of us are a mother or a father, and all of us work. We all know at first hand the importance of maternity protection at work.
But what we also know is the importance of balance between rights and responsibilities, the importance of recognizing the hugely diverse social, cultural and economic environments that exist within the 175 member States of the International Labour Organization, and most of all the importance of acknowledging reality. Have the linguists craft all the fine words in international conventions. Have governments enact domestic legislation that is the envy of the entire world. But without practical implementation at a grass-roots level, such actions will be entirely wasted.
In my statement on behalf of the Employers’ group to the plenary session last year, I stated that we could support the adoption of the report of the Committee at that time because it was an interim report only. I regretted that in the view of the Employers’ group the appropriate balance was not there. There was a lack of balance between the rights and the responsibilities of the three parties represented in the discussion and a definite lack of balance between a principles-based approach and one based on prescription.
In the debate that has taken place over the last two weeks, the Employers’ group has taken seriously the mandate given by the Governing Body of this Organization to revise the Maternity Protection Convention (Revised), 1952 (No. 103), and produce an instrument that afforded maternity protection at work in a form that could be widely embraced by the constituent members of the ILO. We pursued with vigour our firmly held belief that the instrument should establish principles of protection which could then be delivered in accordance with national law and practice. We recognized that each member State is sovereign, and accordingly must set its domestic legislation depending on the view of its constituents — the people of the country who live there — as to what must take priority, particularly in terms of extending rights and benefits. We knew the old approach was no longer appropriate. We had to find a better way.
The need for a new approach was acknowledged by the Director-General in his Report Decent work which he submitted to the Conference last year. He said: “If the ILO is to ensure its continued relevance in this field and reassert the usefulness of international standards, it will need to reinvigorate its efforts … with new approaches.”
As I said in my opening statement to our Committee, he could have been talking directly to us. We were the first committee that could start on the approach indicated by the Director-General of this Organization and adopted by its Conference. We had one opportunity to show how it could be done. We had one opportunity to move from the overly prescriptive, one-size-fits-all instrument routinely adopted by a narrow majority at the Conference and which very few countries were then able to ratify, to one that had meaning; an instrument that encompassed the principles upon which all of us could agree, with the knowledge that each country would be able to deliver actual outcomes based on those principles; an instrument that would deserve to be known as Maternity Protection 2000.
The Employers’ group took this call from the Director-General as seriously this year as we did last year. We believed him, and the Governing Body which supported him, when he said a new approach to standard setting should be pursued.
At our Committee’s first meeting this year I repeated the form of the Convention the Employers’ group had sponsored last year. Our scene-setting statement for that Convention read: “Each Member for which this Convention is in force undertakes to declare and pursue a national policy designed to promote, by methods appropriate to national conditions and practice, maternity leave and protection for all employed women.”
Our statement of principle was as follows: “As an indispensable means of protecting the health of any woman and her child, the woman’s entitlement to a period of maternity leave, to protection from dismissal for reasons related to the pregnancy or maternity leave, with adequate means of supporting herself and her child, is the core element of this instrument.”
We had hoped that in the intervening 12 months member States might have pondered on this approach and seen the same merit in it as the Employers’ group did. So we repackaged it and presented each statement of principle separately. A general principle statement protecting the health of a pregnant or nursing woman and her child was accepted — no doubt because it was put forward by members of the Government group, and not by the Employers’ group.
Such was the response to our first attempt for a principles-based approach, that we abandoned it. We admitted defeat. We were simply not successful.
It is with true regret that we in the Employers’ group review the outcome of our work over the last two weeks. We have an instrument. It is in the same uniform, prescriptive form as the old Convention No. 103. Despite some moves to recognize flexibility in limited areas, we worry that this new instrument might be even less ratifiable than Convention No. 103.
It excludes “enterprises” from the categories of exemptions member States might wish to make from its scope. Those member States whose national law or practice currently, for quite legitimate purposes given their social and economic contexts, exempt family businesses, small or micro-enterprises or agricultural enterprises, for example, will not be able to ratify this Convention.
It extends the period of maternity leave to 14 weeks. In Report IV (2A) the Office reported that only 40 per cent of member States currently provide leave of 14 weeks or more; 60 per cent of the membership of this Organization will not be able to ratify this Convention.
It places the burden of proof solely on the employer in instances of termination of employment. Those many member States whose legal systems recognize a quite different approach to dispute resolution will not be able to ratify this Convention.
It requires breastfeeding breaks to be provided which are to be remunerated as time worked. In Report V(2), leading up to last year’s discussions, the Office identified nursing breaks as being such a barrier to member States’ ratification that it moved the provision from the Convention to the Recommendation. The Employers’ group questions whether the situation has changed in those member States over the last 12 months. If not, they will not be able to ratify this Convention.
And ratification is important. It was the very low number of ratifications that concerned the Governing Body enough to put the topic of revision of this Convention on the agenda.
It’s not just a numbers game.
It’s not just ratification for the sake of it.
It is a serious step.
In ratifying, a member State is committing itself to having its domestic law be in accordance with the Convention. It is committing itself to implementing the terms of the Convention. And, under the review clause, article 22 of the Constitution, member States have to report. And that is the key.
Ratification means member States say “We will do something and we will tell you what we do and we will accept your telling us if we are not doing enough.”
Non-ratification means nothing happens.
And we in the Employers’ group believe women in the world need something to happen.
Standard-setting procedures have to change. With respect to the Director-General and the comments he made to the plenary last week, revision simply cannot mean merely increasing entitlements and improving benefits. It entails careful identification and analysis of those provisions causing a barrier to ratification and providing sound alternatives. The Committee needs to discuss issues of principle, not argue for 40 minutes over whether the words “at least” should be included in the text or not. And we need the confidence to put matters to a working group and respect their recommendations. More note needs to be taken of the in-depth responses that Government, Employers’ and Workers’ groups provide to the Office for the basis of their reports. We heard from our Reporter that in this particular report an all-time record of number of responses and in-depth replies were sent to the Office. In this instance, such a significant majority of governments responded in the negative to the question of incorporating adoption leave in the Recommendation to this Convention, that the Office removed the Paragraph completely. Twenty Government members of our Committee voted to have it reinstated; 16 voted against; 12 abstained and 59 were absent for the vote. Fifty-five per cent of the Government representatives registered to our Committee simply did not attend that session.
The Employers’ group was indeed heartened by the number of governments which spoke of the advances that existed in the different countries in this area of maternity protection at work. We in the Employers’ group ask you to continue those advances, ensuring that the balance between rights and responsibilities, principles and prescription is weighted evenly. We would encourage those governments which have not moved in this area as far as they perhaps could, to please do so. Maternity protection at work is too important an issue to ignore. We also ask all member States to consider carefully adopting a Convention that you know you have no ability or even no intention of ratifying. That would be a disservice to women
and the ILO. Both deserve better than that.
In conclusion, I would like to thank the Office most sincerely for it’s efforts in the work of this Committee. I would also like to express my thanks to our Chairperson, Ms. Andersen, and our Reporter, Ms. Samuel. Both have worked hard and diligently for the Committee. I would also like to record the Employers’ group appreciation of the manner and spirit in which Ms. Engelen-Kefer undertook the discussions.
Ms. ENGELEN-KEFER (Workers’ delegate, Germany; Worker Vice-Chairperson of the Committee on Maternity Protection) —I am speaking on behalf of the Workers’ group of the Committee on Maternity Protection. First of all I would like to commend to you all the report before you and especially the new instruments — the revised Maternity Protection Convention and Recommendation. Despite differences of opinion, we believe that the Committee has worked well and the agreed revised texts are a satisfactory result. A comparison shows that a better balance has been struck in the revised instruments between strict regulations and freedom of choice, especially for the women concerned, and there is also a better chance for adaptation to different cultures and religions as well as different levels of development in different countries.
In summary, there is a much better chance of securing more ratifications and practical benefits in the member countries. At the same time, the substance is such as to make these standards meaningful. I cannot now go into all the details but would like to pinpoint some of the most important aspects.
The scope of the Convention is broader in that it covers all employed women, including those employed in atypical forms of dependent work. Henceforth, it is not only women with written employment contracts who are covered, since they account for only a very small percentage of women workers. The vast majority of employed women do not have this luxury. Now, they are all covered by maternity protection. Many employed women are working in situations of disguised employment and told they are self-employed, but in reality they meet all the criteria of dependent employees. They are also now covered by the new international standards. Many employed women are working in situations where employment laws are frequently flouted, especially the many women working in export processing zones. They will now all be covered by this Convention. Many employed women all over the world are working in the so-called “informal sector” and are grouped in categories where employment relationships are not recognized, for instance homeworkers, contract workers, casual and temporary workers and migrant workers. The new Convention will also apply to them. I think this is a big achievement in broadening the range of women covered by the new Convention, which is a clear improvement on the old Convention No. 103. Unfortunately, we could not completely avoid exemptions of limited groups of women from the scope of maternity protection, but we were able to restrict these exemptions much more than was possible with the old Convention. It will thus no longer be possible, as before, to deny maternity protection to women working, for instance, in the transport sector or to agricultural, domestic or homeworkers.
For pregnant women and mothers it is of extreme importance that the new Convention contains requirements for health protection of the mother and child. I think it is extremely important, especially to women workers, that they should not be obliged to perform work associated with health hazards during that very important period of their lives. This provision was not included in the old Convention No. 103.
The period of maternity leave can now be extended to 14 weeks, as opposed to 12 weeks under the old Convention. The new text also requires six weeks of compulsory leave after confinement, a requirement that can only be changed through agreements between governments, employers and trade unions. I think this gives the necessary protection for many millions of women during the time after confinement where it is most needed for the health of the mother and the child. By the same token this increases the chance of ratifications in countries which want to provide more freedom of choice to allow better adjustment of the period of maternity leave to individual needs of women concerned.
Turning to the crucial provision of benefits, we as workers would have favoured the payment of full wages during the period of maternity leave. We congratulate all countries and women workers who have the opportunity of full wages during their period of maternity leave, but what is the reality elsewhere in the world? There are millions of women workers who during maternity leave lack any form of adequate cash benefits. It is to help them that we are here, to work on new international standards. For them it will be extremely important if we can at least achieve what is now in the new standards, that is, a guarantee of two-thirds of previous income or, in the case of the least developed countries, a provision to ensure that the floor should be not less than sickness or disability insurance benefits. I think that is very important to the millions of women workers who are not among the lucky ones in the more developed countries and the countries with better maternity protection regulations and practice, and for them it will be of extreme importance and help if they get benefits that are at least no lower than the minimum stipulated in the new standards now before you.
No country is prevented from having better standards and no one would think of forcing the reduction of cash benefits in countries where they are currently higher than those provided for in the new texts. I think we have to make a choice between higher standards on paper, which can only help a few women, and more realistic objectives and regulations, which will be of help to the vast majority of women concerned. I would make the choice for the latter in order to do what we are here to do — to help the vast majority of women concerned as much as we can. I think we have achieved that in the standards that are now submitted to you for adoption.
I would like to say some words on a very sensitive issue, the protection of women with regard to termination of employment. Of course, the Workers’ group would have liked a complete ban on termination of employment or dismissal during the whole period of pregnancy, maternity leave, and the subsequent period. But the period has been agreed as it is. We have at least made sure that women get adequate protection against dismissal, not only during the period of maternity leave, as it was provided in Convention No. 103, but throughout the period of pregnancy and after the women’s return to work, including the nursing or breastfeeding period. And I think, seeing the reality of the many millions of women who have no protection whatsoever in the world, it could be of some help. If a woman has reason to complain that she is being dismissed as a result of discrimination because of pregnancy, maternity leave or the subsequent period, including the nursing period, then I think it is only just and fair that the employer should have to prove that there is no discrimination. That is what we have in this text before you. This is not a reduction in protection, I think that it ensures adequate protection, and is to some extent even an improvement in comparison to the old Convention No. 103. What is the reality? The reality is that women are discriminated against and dismissed when it becomes obvious that they are pregnant. Usually it makes no sense to dismiss them during the period of maternity leave because they are not at the job anyway. And in reality, no company can be forced in the event of bankruptcy to employ workers for longer terms than is allowed under other social security regulations. So if you sum up all these considerations, we have still a very adequate and decent protection of women with regard to termination of employment, and this is extremely important to the workers and the trade unions.
Again I would like to congratulate those countries which provide an absolute ban on dismissal or termination of employment for women during the whole period of pregnancy, maternity leave and the time thereafter. I think the women covered by those regulations and practice can be extremely happy, and there is no danger of that protection being reduced.
But again let us do something for the many millions of women, the majority in the world, who are not so lucky, who do not have that protection and who would find their situation greatly improved if the new regulations were effectively put into practice.
I would now like to turn to the issue of the nursing or breastfeeding period. This is a very important issue, and we had a lot of NGOs and international organizations explaining the extreme importance of nursing and breastfeeding. And I think we have managed to provide adequate protection in the new text. We should make sure that all women get adequate and paid nursing breaks during working time. They now even get the possibility of a reduction in working time, which was not part of Convention No. 103, so in this respect too, I think we have got a very fair and realistic regulation which improves the situation of the many women concerned.
Now let me come to my final remarks. I think that we have stuck a good balance and obtained an improvement. We have found the right balance between the need for adjustments, on the one hand, and providing adequate protection through a meaningful standard, on the other. We are talking here not simply about a technical standard, we are not talking here only about better protection for mothers and children, we are talking here about the future of our societies, which will have no future without children. Adequate maternity protection at work is a very important condition for creating a good future. That is a very important task at the beginning of the new century and the new millennium ahead of us.
So let us do our duty, let us adopt these new texts, even if some of you have some doubts about certain points. I also have some doubts about certain points, but the reality is that no group can achieve all the objectives of its individual members; we always have to make compromises in order to find the right balance and achieve something worthwhile. Of course, I know that on the employer’s side, maternity
protection involves costs, but they are not only costs, they are investments in human development; they are investments in our own future; they are investments for making globalization a human development, giving globalization a human face. In this respect we are all in the same boat, all the members of all three groups here, the members of all countries irrespective of their stages of development, the members of all races, all religions, all cultures. So I really would like to appeal to you to make this exercise useful, by adopting the revised texts of the Convention and Recommendation tomorrow.
I would like to express my thanks to those who helped us to achieve this result — the Chairperson of our Committee, the Reporter, and the secretariat, especially Ms. Dy Hammar and her team. I would also especially like to thank the Legal Adviser, and Ms. Knowles, the Employer Vice-Chairperson. We had very good and fair cooperation, despite the differences of opinion that were clear from our speeches, and I thank them for that. I also thank the Government members. I think I learned a lot from you, we had a very interesting exchange of experience and I hope it can be brought to a successful conclusion.
Ms. ANDERSEN (Government adviser, Denmark; Chairperson of the Committee on Maternity Protection) — It has been a very positive experience and privilege for me to have served as the Chairperson of the Committee on Maternity Protection for the second time. Over the course of two years of discussion, the Committee’s concern has been to produce an instrument which protects women and their babies during pregnancy, absence on leave, and the period following the woman’s return to work, especially when she is breastfeeding. Such protective measures are of great importance to women all over the world, because we all know that discrimination based on maternity puts women in a very vulnerable position in the labour market.
The proposed new maternity protection Convention acknowledges this fact, and incorporates measures of addressing the issue. It is important to bear in mind that maternity protection is an integral aspect of the struggle to prevent gender discrimination. For the first time, a Convention on maternity protection will have a specific provision concerning discrimination. Special measures to protect maternity are permitted by the Discrimination (Employment and Occupation) Convention, 1958 (No. 111). One of the core Conventions of the ILO is the subject-matter of the Declaration on Fundamental Principles and Rights at Work. Unlike many other measures aimed at protecting women, maternity protection is an essential protective measure relating to women’s unique biological role, a universally accepted, valid, exception to the normal modern approach that focuses on gender equality rather than protective measures for women.
Another new element in the proposed Convention that expands to the very notion of maternity protection, as it is captured by the old Maternity Protection Convention (Revised), 1952 (No. 103), is health protection. The Maternity Protection Convention (Revised), 1952 (No. 103), was silent on this crucial issue. Health protection is a forward-looking provision that I am pleased to say was accepted and, indeed, desired by governments, employers and workers alike. This provision, specifying the working conditions of pregnant and breastfeeding women, is also a contribution to the area of measures aimed at combating gender discrimination. We must ensure a sufficient level of maternity protection; on this issue there seemed to be universal, or near universal, agreement in our committee.
While we have a common goal, discussions in the Committee have made all of us very aware of the different approaches to achieving equality that are taken in different parts of the world. The process of globalization highlights these differences and, at the same time, forces us to try to reconcile these different approaches. In some countries, detailed descriptive protection may be considered necessary in order to secure women’s rights, but in other countries it may be more effective and acceptable to set out these rights and ensure that the enforcement means are available for them to be secured by women. Neither of these approaches is right or wrong. The question for us all to consider, is how the two systems can be reconciled in a global instrument.
I have given particular attention here to equality issues, since perhaps they did not always come to the fore of the Committee’s discussions. However, it would be remiss of me not to mention the other important improvements achieved in the new Convention; indeed, they are many. First, the new Convention gives protection for the first time to large numbers of women who previously were not included; notably the huge number of women employed in the informal sector, including those in atypical forms of work and disguised self-employment. Secondly, employment protection for pregnant and nursing women has been expanded to protect women throughout their pregnancy, up until a period when they return to work after childbirth. While this protection is no longer absolute, as it was under the Maternity Protection Convention (Revised), 1952 (No. 103), it nonetheless marks a major improvement in protection of maternity, owing to the much longer period of protection. Thirdly, the length of maternity leave is extended from 12 to 14 weeks. Fourthly, as I mentioned, there are new provisions on health protection of the mother and child, and against discrimination relating to maternity.
Finally, I would like to thank the Employers’ and Workers’ Vice-Chairpersons, Ms. Knowles and Ms. Engelen-Kefer, for their very constructive and cooperative approach throughout the Committee’s work. In their different roles, they were both very careful to ensure that the increasingly important role of women in the labour market, and the implication of this for the development of society, were recognized and understood in our Committee.
I would also like to thank the reporter, Ms. Samuel, and the members of the Drafting Committee for their work well beyond the call of duty. I would like to thank my fellow Government delegates, who are so often willing to try to reach out to understand the points of views of those whose experience is rooted in different realities and, thereby, to build bridges across the regions. Last, but not least, I would like to recognize the tremendous assistance provided by the secretariat of the Committee. Their report helped our understanding of the issues and of the framework within which maternity protection can be viewed. As a result of their work, taking account of the many different views expressed, they were able to save the Committee a lot of work in arriving at a workable solution; for example, the text prepared by the Office in view of the replies received, helped us to avoid another long debate this year on additional leave for maternity-related illness or complications.
I would, therefore, like to thank Ms. Dy Hammar, Mr. Salter, Ms. Doumbia-Henry, and all the others, including the interpreters and technicians, and others behind the scenes, whose work contributed so much to our discussion.
Original Spanish: The PRESIDENT — The general discussion on the Report of the Committee on Maternity Protection is now open.
Original German: Mr. MUGGLIN (Workers’ delegate, Switzerland) — Almost exactly a year ago the majority of citizens in Switzerland voted against a proposal for a maternity insurance scheme. You, tomorrow, as delegates of governments, workers and employers from throughout the world have the possibility to set the future minimal standards in the area of maternity protection. One of the goals of the ILO is to ensure that member States help to bring into force worldwide these standards in the foreseeable future.
Only the Workers’ delegates in the Swiss delegation support the proposed Convention. The Swiss Government will abstain in tomorrow’s vote. Regardless of the final text, this decision was already reached some time ago. The Swiss practice is to vote in favour of an ILO Convention only if national law already encompasses the provisions of the Convention or, in exceptional cases, if only minimum adjustments are required. If it has no grounds for opposing a Convention, the Government abstains and thereby deliberately jeopardizes the chances of reaching a quorum which is needed for adoption of a Convention. So it does not distinguish between the voting for a Convention and ratification.
The result of the referendum a year ago in Switzerland is also a further legitimization for the Swiss Government not to express a view on this question. However, the Government forgets that the Swiss people also voted a year ago for a revised Constitution that should, inter alia, require the State to establish a system of maternal insurance (Art. 116 BV). The Constitution’s social goals stipulate that the federal Government and the cantons have to ensure that individuals are insured against the economic consequences of maternity (Art. 41, para. 2, BV). The Government does have a constitutional mandate here.
There are already various parliamentary initiatives under discussion, and a number of cantons in French-speaking Switzerland are currently contemplating their own maternity legislation.
However, at present maternity protection in Switzerland is very much an unmet need. In many cases, one cannot claim salary payments or equivalent benefits. This depends on the number of years of service or the terms of the relevant collective agreement. The law stipulates a mandatory period of eight weeks’ leave after confinement, but it does not address the question of payment of salary. Thus, for the foreseeable future in one of the richest countries in the world there will be no countrywide legislation providing for maternity protection, in accordance with standards set forth in the Maternity Protection Convention (Revised), 1952 (No. 103), or with the new revised Convention. By abstaining, the Swiss Government is sending the wrong signal.
Given the current situation in the country, the Swiss Federation of Trade Unions does not demand the immediate ratification of this Convention. However, we would ask the Government to reconsider its long-standing practice with regard to voting and ratification, since it runs counter to the spirit of the ILO. It is the goal of the ILO to ensure the translation of the objectives enshrined in Conventions into the national laws of member States.
We are critical of the Swiss attitude, because it undermines the consensus needed for the adoption of Conventions by the ILO. In this process, the interests of other countries must be taken into consideration. National interests can be asserted at the time of the review or ratification of an instrument.
We hope, however, that there will be enough positive votes for the revised text of the Convention to help us to make a breakthrough, so that the groundwork can be done for the provision of maternity protection in accordance with the goals of the ILO, which also deserve our support. Maternity protection should be a core aspect of the fight to achieve equality between men and women workers. It is also a vital part of the basic protection of woman and children, as highlighted in a recent ILO informational bulletin. I would recall the words of Ms. Knowles, the Employers’ Vice-Chairperson of the Committee, who said that maternity protection is too important for us to ignore.
Mr. VAN DER HEIJDEN (Government delegate, the Netherlands) — The Government of the Netherlands supports fully the revision of the Maternity Protection Convention (Revised), 1952 (No. 103), for two main reasons. The first of them is the improvement of a 50-year old Convention, and the second is the need for better flexibility in this new Convention. Looking at the content of the proposed Convention, we see several improvements made. I would like to present a few. It is very important that the new Convention contains a provision about the protection of mother and child health. Another improvement is the fact that the maternity leave period is extended from 12 to 14 weeks. My delegation is very glad that the provision about nursing breaks has kept its place in the Convention, and was not moved to the Recommendation. Improvements have been made with respect to the flexibility as well. The provision about compulsory leave is formulated less strictly. Compulsory leave is not obligatory if this is agreed at the national level between the Government and the social partners. Also, the paragraph about the individual liability of the employer has become more flexible. This paragraph was a great barrier for ratification, and the new Convention has taken this situation into account and provides a more flexible clause in this matter. So we, the Dutch Government, think there is a new balance, with improvement and more flexibility. It has been almost 50 years, half a century ago, since the Maternity Protection Convention (Revised), 1952 (No. 103), was adopted. Fifty years of social progress and development should be clearly reflected in the revised Convention on maternity protection. My delegation is of the view that the proposed Convention has succeeded in this respect. It would be a bad political signal if this Conference could not support such an improvement. Finally, the Dutch Government would like to stress that the adoption of an instrument and the ratification of it are two separate things. You cannot take two steps at the same time. You should proceed step by step. Tomorrow we are deciding on the adoption of the Convention. Without a Convention, no ratification is possible at all. We should distinguish between those things. They are not the same. First, let us adopt the Convention, and afterwards move on to ratification. We should keep that in mind. To conclude, the Netherlands Government supports the new Convention, and I would like to stress, as the Worker member of the Committee so eloquently said a few minutes ago, that it is not only about maternity protection; it is also an instrument to combat discrimination against women. It is about, as the Director-General said last week in his address to this Conference, their jobs, their careers and their lives. It is about half the world’s population. I would like to call upon all the Governments in this room, and the Workers and the Employers as well, to support this revised Convention.
Mr. KUMAR (Labour Minister, Government of Orissa, India) — I am grateful to the President for giving me this opportunity. As one of the founding Members of the ILO, and keeping in view the need for extending the benefit of maternity protection to as large a number of working women as possible, India has been and continues to be in favour of all measures taken to protect the interests of working women and their children, including those relating to employment within maternity leave and payment of crèche benefits during that period.
We have regular laws called the Maternity Benefit Act, 1961, and the Employees’ State Insurance Act, 1948, which were enacted as far back as 1961 and 1948, respectively. Most of the provisions in these laws are already in keeping with the provisions of the existing Maternity Protection Convention (Revised), 1952 (No. 103). For example, the period of maternity leave provided in these laws is already 12 weeks; working women are entitled to full wages during maternity leave, as against two-thirds of previous earnings as provided for in the existing Convention. There are also provisions which entitle working women to leave in addition to the maternity leave in cases of complications arising out of sickness during pregnancy, miscarriage, etc. Further, the legislation provides in no ambiguous terms that the employers are prohibited from dismissing or discharging a woman from work during the period of maternity leave or during sickness arising out of pregnancy. After the conclusion of the maternity leave, the working mothers also get at least two breaks for nursing the child, for a period of 15 months.
There are other provisions in Indian legislation which are in keeping with the existing ILO Convention No. 103.
The reasons why India, like many other countries, has not been able to ratify the Convention is that it has not been found possible to extend the benefits of these laws to all women, particularly women in the unorganized or informal sector. It was perhaps for such reasons that the Governing Body of the ILO considered it appropriate to suggest revision of the Convention so that the revised Convention could attract more ratifications, as against only 38 at present.
Surprisingly, the Committee on Maternity Protection, instead of providing for flexibility in the existing Convention, has taken a few decisions which, it is feared, will mean that there will be still fewer ratifications. For example, the Committee adopted the minimum period of maternity leave as 14 weeks, as against 12 at present. The Committee also seems to have made the exclusion clause much more prescriptive than at present. Similarly, the Committee has brought in the concept of paternal leave in the Recommendation.
While India supports all these new initiatives introduced by the Committee, we still feel that, keeping in view the special situation in which the developing countries are placed, it would have been better if the minimum period of maternity leave had been retained at 12 weeks and the exclusion clauses had been made more flexible. If this had been done it would have certainly paved the way for India and other countries to ratify the revised Convention.
This would have also been in tune with the thinking of the Governing Body of the ILO, which suggested revision of the existing Convention so as to attract more ratifications.
Original German: Mr. THÜSING (Employers’ delegate, Germany) — The Employer Vice-Chairperson of the Committee has explained the reasons why the Employers cannot agree to the proposed text. Other colleagues will provide further explanations, and I will not go into details about all these questions. However, on behalf of the Employers’ group, I would like to call your attention to the central issue, or rather I would like to remind you of it, because we have discussed it many times. The fact is that the Employers, having participated in the ILO’s standard-setting process, which guides our approach, would like to see the standard-setting process reformed. We have been asking for this for many years now, and have the impression that there is a growing sympathy for and understanding of our point of view. In other words, if the ILO is to play a meaningful role in the world today, given all of the changes which we are experiencing, then it should make sure that standards are set in such a way as to guarantee flexibility and a chance for their application worldwide. Our task here is a global one, and so we must make it possible for standards to be ratified and implemented worldwide.
The acceptance of a standard, and its ratification and implementation through national laws are all formal stages. But they are all interrelated. If a standard is accepted but has no chance of being ratified, then there is no chance of it being implemented either. The first step is taken here when we determine the standards that will be set. This is the first step and it tells us whether subsequent steps will be successful or not.
We have the impression that this need for reform of standard setting in the ILO is widely acknowledged. I remember the most recent discussions within the Governing Body where the point was stressed by governments from all parts of the world, and I remember the commitments made by the Director-General. This approach was used very successfully with regard to the Worst Forms of Child Labour Convention, 1999 (No. 182), which was widely ratified in 1999. We willingly agreed to consideration of the agenda item and a review of the Maternity Protection Convention (Revised), 1952 (No. 103). It is our opinion that we must also be successful here and now. The Convention is gathering dust in the archives, unratified, or ratified by very few, and has no chance of being ratified by any other countries. We want to have a standard which has a chance of being ratified.
We are very disappointed. We are very disappointed by the result as it stands. It is the same kind of disappointment we have often felt.
We cannot agree to the text, having considered it from all angles. We will certainly be criticized that we are against maternity protection, but this is too easy. Employers in many countries will be unable to accept these measures. There are other countries where the employers welcome further maternity protection provided that it is consistent with their own possibilities. They would certainly like to see a standard set which is realistic, practical and capable of ratification, really helping to provide maternity protection. This is not the case with the present standard, nor with Convention No. 103. Regardless of the decisions taken in this room, any government can take steps to provide maternity protection on the best, most reasonable and most generous terms it wishes. There is nothing to stop it. However, in our many years of experience, standards do not change reality just because they exist. They just gather dust in the archives: their existence does nothing to alter the outcome.
So, I have recalled these basic principles, which have guided the Employers in our discussions. We remain firmly of the view, despite all the disappointments, that the setting of standards is an important part of the ILO’s work and should remain so. But it will only have significance if we go back to a realistic approach and set standards which have a real chance of being ratified worldwide. That is not the case here.
Mr. LAMBERT (Employers’ delegate, United Kingdom) — For many developed countries, maternity protection at work does not depend on the international instruments. These countries already have high standards of maternity protection — standards which may equal or exceed those specified in the proposed revised Convention.
Achievement of these standards has frequently been achieved despite — rather than because of — Convention No. 103. This Convention was put forward for revision because of the low level of ratification — only 38 out of 170 or maybe now 175 States. This small proportion was the result of the highly prescriptive approach of the Convention.
Adoption of the revised Convention would compound that error. The modern world of work needs up-to-date, achievable standards in the near future — ones that are applicable globally. It is imperative that their scope and detail make allowance for national, social and economic realities, as well as religious and cultural diversity. They have to incorporate sufficient flexibility for countries with very different legal and social security systems.
This revision falls far short of achieving that. Despite the efforts of the Employers’ group and some Governments, it largely replicates the defects of Convention No. 103. If adopted, this revised Convention will fail to provide real protection for employed women and their babies in those areas of the world where it is most needed.
I would echo the call of Ms. Knowles for member States to review their policies within their national contexts, with a view to providing attainable, sustainable maternity protection. Such reviews need to balance carefully the interests of workers, employers and governments alike.
Many member States may be tempted to support the adoption of this Convention because they would like to see implementation globally of the standards it contains — even though their own country will almost certainly not ratify it. Other member States may be tempted to do so because such standards already apply within their own countries.
Such considerations are totally understandable, but the adoption of an essentially unratifiable Convention will not improve the protection of employed women and their babies. Its adoption would reinforce the position of the growing number who call into question the effectiveness, validity and future of the ILO as a unique international tripartite organization.
Mr. HYDER (Employers’ adviser and substitute delegate, Bangladesh) — The text of the proposed Convention on maternity protection is in front of this Conference. As all of us recall, the aim of revising Convention No. 103 was to remove the barriers to ratification which led to the low level of ratification in the last 50 years.
Regrettably, the text as it appears has not removed those barriers for most of the developing countries in the world. I was hopeful that this year’s revision exercise would result in a level of maternity protection at work which could be interpreted and applied as a meaningful standard within the realities of the nations that need social protection the most.
Too often, the protection provided in legislation is not or cannot be delivered. Maternity protection at work is an important issue for all employers and their workers, but unfortunately the approach and provisions contained in the revised text still fail to recognize that protection, if it is has to be real, needs to be attainable.
The inclusion of now 14 weeks of paid leave and paid breastfeeding breaks, just to name a few, do not look to accommodate the realities of a global situation. Such protection may be deliverable in the economies in the developed countries, but not in countries like Bangladesh, from where I come, or in other developing countries of a similar level of development.
From that point of view, the standards proposed in the revised text will remain unattainable, as they simply cannot be economically supported.
Too often, Conventions fail to recognize that a real diversity exists and that the “one-size-fits-all” response is, today, a totally flawed approach. Flexibility is needed to allow national implementation of standards that provide real protection at a realistic level.
I am concerned also at the expectations that surround a revision of a Convention. A revision entails a critical review of all the conventions provisions to identify where the true barriers to ratification lie and remove them. It is not just about increasing the entitlements to levels that further inhibit ratification. A common understanding of this process seems necessary if revision is to prove a useful means of modernizing ILO standards in the future. Unless that is done, this will remain another ILO standard which cannot be ratified by the developing countries.
Ms. IWATA (Government delegate, Japan) — On behalf of the Government of Japan, I would first like to thank the Chairperson and the two Vice-Chairpersons, the Reporter and all the participants on the Committee on Maternity Protection for their efforts to complete this very difficult work.
Today, more and more women, including married women, play very important roles in the workplace. Maternity protection is a very important issue, not only from the viewpoint of protecting women’s health, but also from that of promoting employment of women and gender equality.
Because of this, we all welcomed the discussion on the revision of the Maternity Protection Convention (Revised), 1952 (No. 103), at the International Labour Conference last year and this year, dealing with this issue nearly 50 years after its adoption, considering the development of policies and measures taken in each member State and reflecting on new problems arising during these decades.
We evaluate highly some of the Committee’s decisions, including the new provision on health protection of pregnant and nursing women and the strengthened provision on non-discrimination against women by reason of maternity.
However, I regret to say that I have some concerns about the proposed text of the Convention and the discussion which took place in the Committee.
It should be recalled that when we decided to discuss its revision, we had the intention to make this Convention more flexible in order for it to be ratified by as many members as possible. It is regrettable that this view was not shared by all the Governments, Employers and Workers in the Committee.
The Committee decided, in some cases, to keep existing provisions instead of approving the revised provisions proposed by the Office, following the positive discussion which took place last year.
In addition, the Committee also decided to create new provisions, some of which are too technical to be suitable for the majority of the Members. We are afraid that the draft Convention could not function as a minimum international standard.
The standard-setting activity of the ILO might lose credibility because the proposed text of the draft Convention has no chance of being ratified by many Members.
We will take a first step to start a comprehensive review of normative activities of the ILO at the November session of the Governing Body.
If the Convention to be adopted at this session of the Conference is unable to fulfil the goal we set at the beginning of the discussion, i.e. to make the Convention more ratifiable, it will be unfortunate for the discussion of the Governing Body, and for all workers, including, of course, women workers, as well as for employers and governments.
Ms. OKUNGU (Employers’ adviser, Kenya) — Thank you for allowing me this opportunity to represent the women of Africa.
For two good weeks we sat on the Committee on Maternity Protection. There are quite a number of people here who really made it work.
It was a tough thing to go through. Being a woman myself, and being a young one of child bearing age, I think this would have been the best Convention in the world if, and I repeat if, we were not to face the socio-economic realities we have back at home.
From listening to the debates in the Committee on Maternity Protection one could form the view that Africa has levels of maternity protection comparable to that of the Western world.
That is simply not true, and Kenya is an example of that reality.
This year’s discussions presented an opportunity to create a Convention which could provide women workers in our part of the world with real protection, protection which enabled women to bear children without fear of job loss or discrimination.
The final text of the revised Convention makes this goal as distant as that of Convention No. 103 for most of Africa.
Africa is not one country. Its diversity is displayed not only in the areas of language and culture, but also with regard to economic and social development. If maternity protection is to become a true reality, it must be affordable, attainable and capable of actual implementation and enforcement. The initiative has to sit with the need to ensure job creation and enterprise development in economies that are heavily informal. In this case I would remind you that in our situation in Kenya, 63 per cent of employed people, not just women, work in the informal sector. The formal sector has only 37 per cent. Employers can, and do, play their part but they cannot bear the cost of social protection alone, and I mean alone in the sense that, in Africa, our social security systems barely exist.
This revision does not recognize this reality. While protection must be more than the bare minimum, or aimed at the lowest common denominator, it must still be attainable. Prescriptive provisions which fail in a balanced way to recognize the interests of all those in the employment relationship doom the outcome to failure.
That, for me, is a true disappointment.
Original Spanish: Mr. DE REGIL (Employers’ delegate, Mexico; Employers’ Vice-Chairperson) — Once again we seem to find ourselves at the end of the Conference considering the adoption of a text, which has failed to meet the objectives established when it was put on the agenda for revision. The Maternity Protection Convention (Revised), 1952 (No. 103), has attracted only 38 ratifications since its last revision in 1952. Instead of critically examining the text to identify, and overcome the barriers to ratification raised by many member States, we now have a text which in many respects has raised entitlements but paid little attention to its possibility of ratification.
Many countries represented here will probably have no difficulty with the proposed text, as it provides lesser protection than they already have in their legislation, but that is not the point. The maternity protection Convention is too important to apply only to those countries which do not need an international Convention to guide them in this area. We should be more concerned about those countries which being unable to meet the standards of the Maternity Protection Convention (Revised), 1952 (No. 103), now remain in the same position with regard to the proposed text.
I am not suggesting that standards should be set at a level which renders them meaningless. The protection that they provide must be realistic, but surely they should also allow for the economic and social situations in each country. The new text takes us, in effect, no further than the Maternity Protection Convention (Revised), 1952 (No. 103). This is somewhat unfortunate 50 years later and after two years of discussion. In the case of Mexico and Latin American countries this will only mean another burden on the social security system, with detrimental effects on the creation of employment.
The new types of work which are beginning to emerge, and which will accelerate, require a modern response — one which maintains a balance between the need for effective protection, as well as the needs of enterprises. We do not want to create barriers for the employment of women, but neither do we want to reduce the possibility of creating employment and enterprise development. This is sometimes a fine balance, and I believe that we have missed an opportunity to show the world that the ILO can manage these sometimes conflicting interests and create an instrument that allows women who are now employed, but excluded from protection, to be truly protected in real terms, and not artificial terms that cannot be attained in their countries.
Original Spanish: Ms. ANDERSON NEVAREZ (Workers’ delegate, Mexico; Workers’ Vice-Chairperson) — Men and women from all parts of the world have come to Geneva to work sincerely and with feeling in the Committee on Maternity Protection, set up by the ILO, to support working mothers in their dual function as workers and as mothers.
We have, for more than a year, been discussing a revision of Convention No. 103, which was approved by this Organization some 50 years ago. The 87th Session of the International Labour Conference discussed a number of amendments which were left for discussion at this session. All the workers’ groups from our various countries, together with governments and employers, have examined, commented on and discussed the instrument and have made proposals or amendments during these important meetings.
There are countries which provide greater maternity benefits and which fear that their standards will be undermined if the Convention is adopted. However, for those countries which have more advanced legislation that exceed the levels of Convention No. 103 and the new text, the ILO itself in its Constitution, ensures that such higher benefit levels will not be affected, even if the new Convention is adopted.
I think the new revision of this Convention is a step forward. The ILO recognizes the right of countries not to lose what has already been achieved in the national legislation.
I invite all of you to approve the revised Convention, because it is a more advanced text. There are parts of the world which do not offer any protection at all, and this Convention will be an example for all. Let us help thousands of working mothers, and let us help their children. They have placed their hopes in us, in our discussion of this Convention, in the governments and in the employers and in us, the workers, who, in the ILO, have such a heavy responsibility in this tripartite parliament.
The eyes of the world are turned to the ILO and to us, the participants in this discussion on the question of maternity and maternity protection.
Mr. POTTER (Employers’ delegate and substitute delegate United States) — I am presenting the remarks of Sandra Fiechtner, who was the United States Employers’ adviser on the maternity protection Convention, who unfortunately was not able to stay here in Geneva and give these remarks. These are the remarks of an American professional working woman who is currently living in Europe.
It has been a rich and memorable experience for me to attend the International Labour Conference for the first time. My strong impressions have been formed both from the content of our important work on maternity protection as well as from the way we went about this work. Let me start with a few comments on our Convention.
A principle-based, non-prescriptive Convention was the approach we initiated over two weeks ago. Today, it is clear that we have failed. Our final product attempts mission impossible, prescribing detailed measures for all countries and enterprises, large and small, developed and developing. Often the prescriptions are in direct conflict with existing national laws and practices, as in the burden of proof for termination, the entitlement of 14 weeks of maternity leave and the inclusion of compulsory leave. What will be the effect of our work? If the past predicts the future, a low rate of ratification can be expected. But worse yet, a potential negative impact on women in the workplace could result, due to the hiring and promotional practices in those countries that may try, in good faith, to enforce these prescriptions.
A twenty-first century approach to safeguard the health of women during maternity must not lose sight of the need to help all sides of the equation and keep them in balance in order to ensure that men and women work together equally.
Now a few comments on the way we went about our work. Yes, we worked hard and long hours, but it seemed surprisingly inefficient. The Director-General described the desire for the International Labour Organization of the future to be analytical and self-critical. In this high spirit I humbly suggest that the International Labour Organization look with fresh eyes in three areas.
First, the use of technology to support meetings. If we have sent a man to the moon, certainly we can find a faster way to have role call votes. The investment in technology would be recouped quickly in saving some time and frustration of hundreds of participants. The clumsy amendment and sub-amendment process, while it needs better parliamentary control and consistency, would be improved with laptops and video screens.
Second, the tripartite standard-setting process. Negotiating to reach agreements is often best achieved with dialogue, and working from principles and interests rather than positions. Trying to reach agreement only through yes and no votes has the effect of creating winners and losers, and even polarizing. Precious little time has been spent building on and incorporating each other’s ideas. Rather, most of the time was spent “selling” and defending positions. Better use of well thought-out working party efforts would improve this.
Third, meeting effectiveness. With full appreciation for the complexity of our task and respect for freedom of speech, it seems that even the basic principles of managing time and participation are not embraced. For the first-time participant this is rather shocking. Higher standards and better support to run such complicated meetings deserve priority.
Finally, I laud the impressive efforts of my Employers’ group colleagues who proceeded with a high level of harmony and cohesion. I also express my highest regard for the expertise, leadership and stamina of Ms. Knowles, our Employer Vice-Chairperson.
Mr. BRETT (Workers’ delegate, United Kingdom) — I had not intended to take the floor in this debate, but I was moved to do so by the ebb and flow of arguments from our Employer colleagues and some Governments, and the tendency for all those flows to lead to one river of abstention. And I want to counsel against that.
Firstly, there are those who seek to reject these instruments because they wish to see a more fundamental review of standard setting. Mr. Thüsing said that; Mr. Potter said something similar. Latin American delegates have made it clear outside this meeting that they fear the revised standard lowers those standards already accepted half a century ago in Convention No. 103. They may abstain. The governments of other developing and developed countries take the view that, if they cannot ratify immediately, they should not support the revised Convention. They may abstain.
This is a recipe for failure and we have to consider what we are left with. It would not be a more dynamic Convention No. 103, to be accepted as the standard. As Mr. Thüsing said, it would be a relic gathering dust. For those who want to see the retention of something stronger, this will not be achieved by defeating this revised Convention.
Others who take the view, as my Government has done on occasion, that this is something we cannot vote for if we cannot ratify it — may I say to them and to all other governments, this is about inspiration, it is about targets. May I remind my own Government that when Convention No. 138 was debated many years ago here, I suspect it probably abstained. My Government ratified Convention No. 138 last week — so many years later.
This shows that even in the developed world setting standards does form a target, and without targets how are we to improve the lot of women across the world? This is not a technical standard. It is not simply any standard. It is a standard involving half the world’s population and the whole of the world’s future. It is a standard that will enable women to participate, it emancipates women; it is not some sterile technical standard.
To my Employer colleagues I say, I understand you want to see a revision of the standard-setting machinery; I understand you want to see the process modernized. That is indeed an ongoing debate in the Governing Body. But you should not seek to make this debate about the principle of standard setting rather than a judgement of the past two weeks’ deliberations.
Now, much of what Mr. Potter said I absolutely agree with. I think we should look at the technology, we should look at how we do business. But we should look at it on the basis of what we are here for — to set ratifiable standards, I agree, but to set standards for the world, not standards for the lowest common denominator.
Mr. KINLEY (Government delegate, New Zealand) — Let me first indicate that the New Zealand Government intends to support the adoption of the revised maternity protection Convention and Recommendation which have resulted from the work of the Committee on maternity protection. This position is in our view the natural end point of our engagement and good faith in the revision of the previous maternity protection instruments. As other speakers have indicated, this was at times a particularly difficult Committee, dealing with contentious issues and in an environment that was not without occasional conflict. There were, however, positive developments to come out of the work of this Committee and these should not be understated.
The proposed revised instruments contain improvements in a number of areas, including extensions of the protections provided under the 1919 and 1952 instruments.
As a number of other speakers have stated, there have been improvements in terms of the extension of the period of maternity leave provided under the Convention. The scope of coverage of the Convention has been broadened. There has been an improvement in the anti-discrimination provisions in the Convention, and health protection provisions have also been introduced.
Improvements in the practicability and ratifiability of the proposed revised Convention have also been made by the Committee in comparison to the 1919 and 1952 instruments.
The provisions relating to compulsory leave now recognize the situation of countries where the protection of compulsory leave is ensured by alternative mechanisms. The provisions relating to cash and medical benefits are more permissive and reflect the range of ways in which these benefits are delivered.
The provisions relating to nursing breaks are more responsive to the range of differing needs of mothers, and the manner in which the exclusion provisions can be applied has been made more practical.
A key question emerged, however, over whether the exercise matched the expectations of all the participants. It is clear that a number of amendments were not successful and that none of the participants in the Committee’s deliberations were successful in achieving all the amendments that they had proposed.
The conclusions of the Committee can thus be seen as a reasonable compromise between the tripartite participants of the Committee. However, this outcome and the path we have travelled to reach it may not have fully reflected the spirit of the proposed reform of standard-setting activities, as discussed in the Director-General’s Report to the International Labour Conference last year, Decent work.
It was clear in this Committee that the objectives of revising existing standards at a time when the International Labour Organization is debating options on the means by which the Director-General’s proposals for reform may best be delivered, may be interpreted in different ways by different people.
For that reason, we consider that it is important that social dialogue occur within the tripartite framework of the International Labour Organization, so that there are clear expectations regarding the outcome that the revision of existing instruments is seeking to achieve.
It is important in seeking such expectations that an overall perspective of the role of standards be retained, and that all parties seek to deliver on the Director-General’s vision for the renewal and enhancement of ILO labour standards.
The New Zealand Government would like to express its appreciation to the Officers of the Committee in guiding the Committee through these occasionally trying discussions. We would also like to express our thanks to the representatives of the Secretary-General and the secretariat for their excellent preparatory work and the guidance that they offered during the course of the Committee’s deliberations.
Finally, we would like to make a special mention of the efforts of the Working Party of the Committee, in particular its Chairman, the Government delegate from Canada, for attempting to reach a consensus position on the difficult issues at the centre of this discussion. Their work in seeking a consensus position was commendable and clearly expedited the Committee’s work.
Original French: Ms. JOIN-LAMBERT (Government delegate, France) — The French Government will vote in favour of the Convention and the Recommendation on maternity protection as revised by the 88th Session of the International Labour Conference. But this affirmative vote is not only due to the fact that France will be able to ratify the Convention, subject to a few improvements in French legislation regarding, in particular, the burden of proof in cases of dismissal. We are in fact fully aware that an ILO Convention is not a French convention, nor is it a convention of the developed countries; it affects and concerns the whole world. And we will have a major effort to make with regard to public opinion, to make people understand that the standards which we examine here are intended not to limit — the often better — protection given in our countries, especially in France but rather to improve the situation of women workers in all countries, in particular the developing ones.
I would stress that we do not link this matter to the discussions taking place in the ILO on standard-setting policy. For us, that discussion is far from concluded and to make this Convention a test of standard-setting policy would be in my view inappropriate.
With our vote, the French Government wishes to recognize the important work done in the Committee by the Workers’ representatives and those of the Governments and Employers to improve protection by comparison with the Maternity Protection Convention (Revised), 1952 (No. 103), while respecting the cultural diversity of member States.
The French Government also considers that at the stage which the Committee’s work has reached today, a rejection of the revised Convention would be a serious blow to the ILO, because this is a central issue for society: that working women can give birth to their children while benefiting from the indispensable protection for their safety and health.
Ms. BERESFORD (Workers’ delegate, New Zealand) — This text is a text for the twenty-first century. Some who have commented upon it today clearly have not read it, or have not read it carefully, it seems. Have they compared it systematically with the Maternity Protection Convention (Revised), 1952 (No. 103)? I urge those people to do so today.
I also want to refute totally suggestions made to governments that if they vote for the adoption of this Convention, they are obliged to move immediately to ratification. That is simply not true.
As the Government member for the Netherlands reminded us, one step at a time. First adopt the Convention at this 88th Session and each country can then carefully consider whether or not it wishes to ratify it. I urge everyone here to adopt the revised Convention on maternity protection that so many of us, Workers, Governments and Employers, have worked so hard on for so long.
Why have we done so? To provide the basic provisions for women to be able to participate in paid work without discrimination, and in a way that honours women’s key role in society as the bearers of children and their primary care givers.
To those who are thinking of abstaining, I urge you not to do so. At the least that would be an abrogation of responsibility. At worst it would be an incredibly destructive act.
Let us also reflect upon the preamble of the proposed Convention, which notes the need to revise the 1952 Convention, and I quote “in order to further promote equality of all women in the workforce and the health and safety of the mother and the child, and in order to recognize the diversity in economic and social development of Members, as well as the diversity of enterprises, and the development of the protection of maternity in national law and practice”.
So the revision attends to the needs of women. It attends to the needs of children. It attends to the requirements of enterprises and of countries with differing cultures and levels of economic development.
Last year we were so very proud of our adoption of the Worst Forms of Child Labour Convention 1999 (No.182). Since then many countries have either ratified or are considering internally whether to ratify that Convention. And that is how it should be.
Let us be as proud this year of our work on behalf of women and children generally, as we were last year for our efforts on behalf of the most exploited of our global village.
I urge you most sincerely to adopt this Convention.
Ms. ROBINSON (Government delegate, Canada) — Let me begin by confirming Canada’s support for ensuring that women are not discriminated against on the grounds of pregnancy, childbirth, breastfeeding, and that the health of pregnant women and their children is protected.
It is important to recall that the decision to revise the Maternity Protection Convention (Revised), 1952 (No. 103), was based not only on the need to update the standard to reflect changes in the workplace and in national practices, but also to modify some of the Conventions’ overly prescriptive provisions, in order to allow for broader ratification.
The Committee was successful in updating the Convention, and Canada welcomes the addition of health protection, a prohibition on pregnancy testing, stronger non-discrimination provisions, as well as other improvements which were well explained by the Reporter.
However, with the exception of provisions on compulsory leave and employer liability, which were made more responsive to countries’ situations, prescriptive provisions, which prevented many countries from ratifying the Maternity Protection Convention (Revised), 1952 (No. 103), remain in the revised Convention.
While we agree with the protections in the revised Convention, we are concerned that its prescriptive provisions on how to implement those protections will continue to pose barriers to ratification.
Discussions in the Committee were difficult, and there was a lack of consensus stemming from two quite irreconcilable approaches. Some were of the view that the Conventions should set a high standard and that removing the Maternity Protection Convention (Revised), 1952 (No. 103)’s prescriptive provisions would result in a lowering of protections.
Others took the position that the Convention could be made less prescriptive without lowering protections.
These difficulties point to the need to address a number of issues in the context of the review of normative activities.
There is a need to reach a common understanding of what an international standard should constitute. Should it be an ideal standard that is higher than existing norms in most countries, or a universal standard providing adequate protection, which can be ratified and implemented by a large number of member States?
There is also a need to examine how Conventions can be drafted, so as to ensure adequate protections without including overly prescriptive provisions on how to provide these protections, which ultimately become barriers to wide ratification.
Better preparation of technical items, including preliminary discussions in the Governing Body, would contribute to the development of Conventions which can be widely ratified and implemented, thereby extending protections to more workers.
In conclusion, I would like to thank the Officers of the Committee, the Reporter and all those who worked very hard to reach a conclusion on this important issue.
Original Arabic: Ms. ABDEL HADI (Workers’ adviser and substitute delegate, Egypt) — In the name of God, the Merciful, the Compassionate! The interest of the Director-General and Governing Body in the question of maternity protection is related to one of the ILO’s core activities, which requires the support of all the social partners.
Maternity protection is the ultimate investment in human resources. The revision of the Maternity Protection Convention (Revised), 1952 (No. 103), for the third consecutive year, coincides with the United Nations Conference, Beijing +5, that was held a few days ago in the follow-up to the first Beijing Conference. This Convention is a minimum of what should be done to protect women and mothers. The laws of Arab countries are based on religious precepts that accord women many rights. Therefore, both our laws and national practice reflect a large degree of interest and importance given to working woman as a pillar of society.
We strongly support this Convention, which is the result of considerable debate. We feel that sufficient work has been done to allow us to proceed with the adoption of this important instrument. I call on the social partners to support working mothers and to ratify and approve this Convention, recalling that a working mother is a daughter, mother and sister. Maternity protection means protection for society as a whole and for the workforce of the future. This is something that we all need.
I thank the President of the Conference for accepting the work of this Committee. I also thank the Worker Vice-Chairperson who was very patient and level-headed, helping to bring together the different views of the different members of the Committee.
I hope that you will listen to the voice of justice, which is the voice of working women throughout the world. Since they have to face the consequences of globalization with their only protection being the provisions of the old maternity protection Convention, adopted in 1952, we hope that more progress will be achieved in terms of protection of working women. We therefore call once more on the social partners to support this Convention.
Original Portuguese: Mr. RIBEIRO LOPES (Government delegate, Portugal) — The Portuguese Government is basically in favour of the proposed Convention concerning the revision of the Maternity Protection Convention (Revised), 1952 and the corresponding proposed recommendations.
With regard to the proposed Convention, which is the more important instrument, our views are based on two main reasons. First of all, the proposed Convention provides satisfactory solutions to the major difficulties and obstacles which have prevented the ratification of Convention No. 103 by a large number of countries. Furthermore, it improves the overall scope of maternity protection. Convention No. 103, as you all know, was hindered by four obstacles to ratification. The proposed Convention provides reasonable solutions which we believe would facilitate ratification by those countries which encountered difficulties in ratifying the previous instrument. The proposed Convention stipulates that each Member which ratifies it may exclude, wholly or partly, from its scope of application certain limited categories of workers when its application to them would raise special problems of a substantial nature. Furthermore, the principle that maternity leave shall include a period of six weeks’ compulsory leave after childbirth can be derogated if so agreed at the national level by the government and the representative organizations of employers and workers.
The absolute prohibition of dismissal during maternity leave contained in the previous Convention is replaced by the protection of a woman’s employment, which is a good deal more balanced. Convention No. 103, may I remind you, does not protect the worker against dismissal on the grounds of pregnancy before the start of maternity leave, or against dismissal following maternity leave during the period of entitlement to nursing breaks. In other words, the present Convention does not protect her during the periods in which she is most vulnerable. Neither does it protect her against illnesses that are directly linked to maternity. The proposed Convention improves employment protection during maternity. It extends the period during which workers are protected and prohibits termination of employment on grounds directly related to maternity. The system for financing maternity leave benefits allows employers to take direct responsibility for the payment of these benefits according to three different scenarios. This eliminates the obstacles faced by governments of countries with relatively restricted social security systems.
The second reason why the Portuguese Government is in favour of adopting this Convention is because it improves health protection for both mother and child.
As regards employment protection, which I have just referred to, the proposed Convention contains four improvements:
First, the principle whereby a worker who is breastfeeding her child has a right to work in conditions that are not harmful to either her health or to that health of her child. The Portuguese delegation is proud to announce that it is among the first countries to have adopted measures to protect both mother and child, and also that both social partners have approved these measures. Second, maternity leave is up from 12 to 14 weeks. Third, a worker who is nursing her child has better protection and can request nursing breaks during her working hours or a reduction of daily hours of work, both of which shall be counted as working time and remunerated accordingly.
Finally, maternity should not constitute a source of discrimination. A woman who is a candidate for a job cannot be subjected to a pregnancy test or cannot be obliged to present any certificate to confirm that she is not pregnant, except in certain very justified cases which are provided for by national law.
Many benefits during maternity leave are maintained. This is one of the central points of the Convention, and a very sensitive point, particularly for the Governments and for the Workers. The value of benefits is at least two-thirds of normal income before maternity, although this did not satisfy delegates who thought that these benefits should be at a higher level, nor those who thought that they should have been less. Between these two opposed alternatives then the rule of two-thirds is the most reasonable solution because it avoids emphatic opposition from either side and will facilitate the adoption of the Convention, and its subsequent ratification by a greater number of countries.
It is also true that in order to facilitate the ratification of the Convention there is a degree of flexibility applicable so that countries whose economies or whose social security systems are less developed than others can, nevertheless, move forward to ratification. Countries in this position can in fact accept less than two-thirds of a woman’s previous earnings for maternity entitlements.
The new Convention does match the objectives which were at the origin of the revision of Convention No. 103. The new Convention improves, we think, maternity protection, both in relation to the woman and to her child, and it takes into account the progress that has been made in a number of countries. At the same time, it offers sufficient flexibility in national terms to make it possible for a greater number of countries to ratify it.
At the same time, the new Convention is not a text that contains merely principles or prescriptions. That would mean that it could be ratified by a greater number of countries but that it would have no practical effect as regards national means of maternity protection.
Portugal will vote in favour of the proposed new Convention and Recommendation and, with the social partners, will recommend them to Parliament for ratification.
Original German: Mr. WILLERS (Government adviser and substitute delegate, Germany) — I did not originally intend to take the floor on this subject because I would guess that Germany will be able to ratify the new Convention, although there are certain doubts on Article 8, paragraph 1. But as soon as these are cleared up ratification should take place. However, as I have listened to the words that have been spoken, I have had to leave aside my good intentions not to speak. I therefore have asked to take the floor.
I think that many people have said that the Convention is too complex, too detailed, and then have concluded that this Convention would nullify attempts in the ILO to reform standard-setting policies, or at least that it would counteract them. However, although they might not be completely wrong, it would be sending the wrong message to use maternity protection at work as a vehicle for this message. This issue is too important to be used as a symbol for the changes necessary in standard-setting policy.
New Zealand and France have spoken extremely sensibly on this subject, and I would emphasize what they have said. So I would seize this opportunity to call upon all delegates to take part in the vote, and to vote for the Convention. And I am addressing this call, like my Dutch colleague, to the representatives of those Governments who are perhaps hesitating in respect to whether they can ratify the Convention. This is not completely relevant. The agreement to the adoption of a Convention, and this is something that Lord Brett said, cannot be seen as a commitment to create the national conditions for national ratification. If those delegates fear that their governments will be subject to pressure at home to back up the agreement made here in Geneva with ratification at home, well, they would be able to deal with this by making a declaration relating to the motivation of their vote here at the Conference. So seize this opportunity and vote for the Convention tomorrow.
Original French: Mr. PARROT (Workers’ delegate, Canada) — I would like to avail myself of this opportunity to congratulate the Committee that has done an excellent job on this very important issue. There are a few points that have already been raised by preceding speakers that I would like to address. The first one is a very important point. We have heard here many times the argument that this Convention would run counter to legislation and practice in certain countries and, consequently, it will be unratifiable.
What would the point of the ILO be if it only adopted standards that were in conformity with the legislation and practice in all the countries of the world? If that were the case, the ILO would serve merely to maintain the status quo. If in some countries there were no standards at all, the ILO would be obliged not to adopt any standards, as otherwise it would run counter to the national practice of the country in question.
I think this is a very dangerous argument indeed. What it means is that some countries which consider themselves developed would never adopt any Conventions because they would run counter to their legislation, and they would not be ready to amend such legislation. The whole purpose of adopting new standards is to give countries a reason to adapt their legislation, so as to ratify them.
The second point I would like to raise concerns the contention that we are currently revising the standard-setting system of the ILO. I would like to say that we have not yet really begun this revision process. At the last session of the Governing Body, the Workers’ group clearly stated that before any effective revision can take place, some guarantees must be established to ensure that the revision process does not result in a weakening of standards.
My third point is this. We have before us here a Convention that is not, strictly speaking, a technical Convention. It is a Convention that recognizes differences in the workplace. It recognizes the fact that work is different for men and women, it recognizes that women are disadvantaged in the workplace by comparison with men. There is a very obvious reason for this and it is something that is beyond our control: women bear children, men do not, and there is nothing we can do about that. But what we can do is to ensure that women enjoy the same advantages as men, by affording them protection — as we are trying to do through this Convention. In other words, we are trying to ensure that women do not lose their jobs simply because they are pregnant, that they do not lose the benefits and the advantages that they should enjoy simply because, for a certain period of time, they cannot be present at the workplace. I think that this is very significant. After all, when we start adopting employment programmes, then we in the ILO constantly seek to encourage the participation of women, not just in the workplace but in society as a whole; that this is part of the objective of the ILO. If women lose their jobs then they obviously no longer enjoy the kind of protection that should be afforded them and no longer enjoy the opportunity of playing their rightful part in society — an opportunity of which men are never deprived for those reasons.
This being the case, I do not believe that we should make this Convention some kind of test case for the standard-setting process. We should not merely set out — as some have suggested — to make it ratifiable. I think that we have to take a decision here to recognize that women should enjoy the same advantages at work as men, without losing other advantages to which they are entitled and which allow them to participate fully in decision-making within society. This would allow women to make their voices heard and would allow them to be full and equal partners in society at all levels. If we don’t grasp this, then we are going to go on moving backwards, and we are going to fail to encourage women to participate as they should. In fact, we are going to go back to the situation we had in the past, where women were just supposed to stay at home, chained to the kitchen sink.
That is why we need this Convention. We have had Convention No. 103 for 50 years and things have changed a lot in those 50 years. Women now work, women now participate in economic terms in bringing up children, and we recognize today that women and men have to work together. That is why we must provide the services required to allow them to work together, and to allow children to be brought up as they should.
Society has changed, and we have to change, too. I think we have an opportunity tomorrow, an opportunity to vote for a Convention that will allow us to acknowledge that change has taken place. To all the Governments who say that revision of the standard-setting system is necessary because we need modern standards, I would say this: what could be more modern than ensuring that women of today are recognized as women of today, and not women of yesterday?
Ms. NZOMO (Government adviser, Kenya) — I wish to thank the President, for giving me the opportunity to talk here on behalf of the African Government delegates, who wholly support the draft Convention just presented to us this morning.
It is very difficult to satisfy the various interests presented in this plenary. However, there is a need to come to a compromise. One of the issues that has been raised is the extension of the maternity leave to a minimum period of 14 weeks. The extension, according to the African Government delegates, was found to be extremely necessary, and is beneficial to everybody, including the employers. A reasonable period following childbirth, during the maternity period, has the following benefits; women work better when they have had sufficient rest after childbirth, and have had time to breastfeed their babies. Also, the children become healthy, and employers, therefore, spend less in medical bills since children could fall sick as a result of not being properly breastfed. A woman employee is more likely to settle down and work if she has also had reasonable time to rest, instead of taking time off to look after the baby and also to get their own medical attention.
Emphasis attached to a social security fund for financing maternity benefit is one of the major handicaps to the ratification of the Maternity Protection Convention (Revised), 1952 (No. 103), among most African countries. However, this document states that in addition to a social security fund, as in the draft Convention, funds from both the employers and the public would be used to meet maternity benefits. This caters for the interests of the majority of African countries who do not have social security assistance which is developed sufficiently to cater for maternity protection. African Governments, therefore, associate fully with the proposed maternity protection. In the new millennium, other sources to finance maternity benefits, and to reduce the burden of the employers in the African countries, have to be explored. This includes setting up social security funds; it is also hoped that the ILO will make technical assistance available for this purpose.
It has been implied that the proposed Convention is not favourable to developing countries, but the standards of maternity protection in some of these developing countries is much higher than the protection being offered in the draft Convention. Therefore, the African countries would not have a problem in voting positively for the draft Convention.
The discussions of the Committee on Maternity Protection were open and positive, and the Committee at that level adopted the draft document. This draft gives room for flexibility in the application of the Convention.
I appeal to you to vote wisely for the proposed document, which directly applies to the existence of individual countries and humanity at large. Maternity protection is a necessity and not a luxury. Thus, to allow women only two extra weeks to recover from the hazards of pregnancy, childbirth and postnatal problems, is not asking for too much. Once again, vote wisely, as mothers, fathers of mothers, and individuals, for the dignity of the women and children in the twenty-first century.
Original Arabic: Ms. ABOULNAGA (Government delegate, Egypt) — The delegation of Egypt wishes to extend thanks to Ms. Andersen, the Chairperson of the Committee on Maternity Protection, the two Vice-Chairpersons, and the Workers’ and Employers’ groups for their efforts during the deliberations of the Committee, and for their excellent management of the Committee’s work. The delegation of Egypt wishes also to extend its thanks to the Officers of the Committee and the Reporter.
The delegation of Egypt welcomes the new Convention and supports its principles and provisions. The Government of Egypt, together with the other social partners, attaches great importance to the various provisions aimed at promoting the protection of working women, particularly those relating to health and social protection and to economic benefits, that enable women to fulfil their responsibilities both towards their families and society.
In this connection, I wish to confirm that Egypt’s national legislation includes provisions that offer more generous protection than that which is afforded under the present Convention. Egyptian law currently provides for a period of 12 weeks’ maternity leave. We therefore cannot agree to the provisions of the Convention which stipulate an entitlement of not less that 14 weeks.
The delegation of Egypt wishes to draw attention to the fact that the Egyptian Government is developing national labour law in a manner consistent with various social changes and the process of economic development in the country.
Mr. NGUYEN (Government delegate, Viet Nam) — I had not intended to take the floor, but listening to the various views expressed this morning has caused me to add my voice to those of earlier speakers who have spoken in support of the proposed Convention on maternity protection.
Previous speakers have already highlighted a number of improvements that have been included in the proposed Convention. I will not repeat them all in detail, but simply highlight two important improvisations, that is to say, two aspects of protection which figure in the proposed text but which were totally absent from Convention No. 103. These are health protection and non-discrimination.
I want to highlight these two elements not only because they are important improvisations, but also because they received support from all three groups within the Committee. There was a clear need, which was felt by governments as well as the social partners, for these vital elements of maternity protection — health protection and non-discrimination — to be included in the new Convention — they were totally lacking in the old.
I also wish to signal to the Conference as a whole, the impressive effort made to reconcile divergent views in the course of the Committee’s deliberations. At the end of last year’s discussion there was still a very wide gap between the position being defended by the various groups.
Many critical issues were left to this year’s Committee to resolve. Over the past two weeks, we have made remarkable efforts to find a balanced solution which would take into account the views of all parties. Not every provision of this instrument will satisfy every delegation and not every country will be able to ratify it in the near future. Nonetheless, we recommend this instrument to you and urge you to vote positively for its adoption. We need to ensure that the areas of clear improvement are not lost. We need to ensure maternity protection for the greatest number of working women, offering them leave, benefits, health protection, job security and the right to work free of discrimination. For these reasons, my delegation urges you to support the proposed Convention by a positive vote tomorrow. Working women are counting on you.
Original Spanish: The PRESIDENT — We shall now proceed to the adoption of the body of the report itself, i.e. the summary of the discussions in Committee, in paragraphs 1 to 704. If there are no objections, may I consider that the body of the report — paragraphs 1 to 704 — of the Committee on Maternity Protection is adopted?
(The report — paragraphs 1 to 704 — is adopted.)
Proposed Convention concerning the revision of the Maternity Protection Convention (Revised), 1952 (No. 103): Adoption
Original Spanish: The PRESIDENT — We shall now proceed to the adoption of the Proposed Convention concerning the revision of the Maternity Protection Convention (Revised), 1952 (No. 103). Can I consider that the Proposed Convention as a whole is adopted?
(The Convention is adopted as a whole.)
In accordance with paragraph 7 of article 40 of the Conference Standing Orders, the provisions of this Proposed Convention concerning the revision of the Maternity Protection Convention (Revised), 1952 (No. 103), as adopted by the Conference, will be submitted to the Conference Drafting Committee for the preparation of the final text.
Proposed Recommendation concerning the revision of the Maternity Protection Recommendation, 1952 (No. 95): Adoption
Original Spanish: The PRESIDENT — We shall now proceed to the adoption of the Proposed Recommendation concerning the revision of the Maternity Protection Recommendation, 1952 (No. 95). May I consider that the Recommendation as a whole is adopted?
(The Recommendation is adopted as a whole.)
In accordance with paragraph 7 of article 40 of the Conference Standing Orders, the provisions of the Proposed Recommendation concerning the revision of the Maternity Protection Recommendation, 1952 (No.95), as adopted by the Conference, will be submitted to the Conference Drafting Committee for the preparation of the final text.
I therefore declare concluded the examination of the report of the Committee on Maternity Protection and of the Proposed Convention and Recommendation presented to us by it.
It remains for me to congratulate the Officers and members of the Committee and the secretariat for the excellent job they have done.
Final record vote on the Convention concerning the revision of the Maternity Protection Convention (Revised), 1952
Original Spanish: The PRESIDENT — We shall now proceed to the final record vote on the Convention concerning the revision of the Protection of Maternity Convention (Revised), 1952, of which you will find in Provisional Record No. 20A.
(A record vote is taken.) Result of the vote
[The detailed results of the vote will be found at the end of this Provisional Record.]
As all delegates have now voted, I declare the vote is concluded.
The result of the vote is as follows: 304 votes in favour, 22 votes against, with 116 abstentions. Since the quorum is 267 and the required two-thirds majority is 218, the Convention concerning the revision of the Maternity Protection Convention (Revised), 1952, is adopted.
(The Convention is adopted.)
A number of delegates wish to explain the way they voted. I give the floor to Ms. Niven, Government delegate, United Kingdom).
Ms. NIVEN (Government delegate, United Kingdom) — The United Kingdom would like to make an explanation of our vote.
Yesterday, the Reporter, the distinguished Government delegate of Cyprus, listed the increased benefits conferred by this revised Convention.
The Government of the United Kingdom wholeheartedly endorses the objective of achieving proper, universal maternity protection. This is not just a matter of individual rights, although that is vitally important. If mothers have decent maternity pay and leave they are more likely to return to work. This is good for companies because they can then retain skilled staff and their investment in skills and training is not wasted.
The Government of the United Kingdom has set up a Work Life Balance Challenge Fund to help employers explore how work-life balance employment policies will deliver more efficient, flexible and profitable businesses.
However, the United Kingdom’s current legislation does not fully comply with the provisions of this Convention. The United Kingdom could not therefore, at present, ratify this Convention.
On 9 May my Government announced a major review, at the ministerial level, to look at the issues of maternity and parental leave. My Government will pay close attention to the provisions of this Convention in the review, but my Government did not want to pre-empt the conclusions of that review by giving any commitment at the present time about future ratification of this Convention. Accordingly, I was instructed to abstain on the vote today.
Mr. DREVER (Government delegate, Australia) — Australia voted for the adoption of the revised Maternity Protection Convention (Revised), 1952 (No. 103), but wishes at the same time to record in the strongest possible terms its disappointment at the form that this revised instrument takes.
This Conference was given a mandate to review maternity protection on the basis that only a very small number of member States had been able to ratify the Convention on that subject in its entire 48-year history. As many speakers in yesterday’s discussion indicated, the Maternity Protection Convention (Revised), 1952 (No. 103), was a detailed, prescriptive instrument that took little account of different national arrangements and levels of social and economic development. The reviewed Convention is just as prescriptive as its precursor, and indeed provides for higher levels of standards in several areas. This formulation is not conducive to increased ratification. It is highly likely that even several of those member States that had ratified the Maternity Protection Convention (Revised), 1952 (No. 103) will not be able to ratify this new instrument.
It is also notable that some developed countries that have the highest levels of maternity protection in the world would have great difficulty in ratifying the instrument. This is not a positive outcome for women. In Australia’s view, it will fail to achieve the broader coverage and protection for women that the review envisaged. Nor is it a positive outcome for the ILO and its member States. In the last decade, Conventions adopted by the ILO have, with the notable exception of the Worst Forms of Child Labour Convention, 1999 (No. 182), achieved consistently low levels of ratification. Outcome such as this only serves to emphasize the view that Australia has previously expressed, that the need for comprehensive reform of standard setting is growing ever more urgent. Australia voted in favour, as it does not wish to stop those member States that are able to ratify this instrument from doing so, but regrets that a more meaningful and flexible international labour standard could not be adopted.
Original Spanish: Mr. SAPPIA (Government delegate, Argentina) — I am making this statement on behalf of the following Government delegations: Chile, Nicaragua, the Dominican Republic, Uruguay, Guatemala, El Salvador and Argentina.
We would like to explain why we voted no. We want to strengthen the standard-setting activity of the ILO and our vote against should be seen in that light.
Analysing the revision of the Maternity Protection Convention (Revised), 1952 (No. 103), we came to the conclusion that the new instrument should be looked at not only in relation to national legislation, but also in relation to what is already stipulated in Convention No.103 and to the provisions previously set out in Convention No. 3 of 1919.
Our analysis of the draft revision of the Convention led us to the conclusion that although some progress has been made, for example, increasing post-birth leave from 12 to 14 weeks, nothing has been done to reduce the risk of dismissal during pregnancy and after childbirth. What is important is not the length of the protection, but the security that such protection affords. We feel that this is being watered down in the proposal which was submitted for our consideration. We are also concerned about social responsibility for the change in the system of public financing. The increased expense involved in hiring women could lead to discrimination against women, where at present such discrimination does not exist.
This runs counter to our government policies, which are directed at increasing female employment in decent work and maintaining it at a high rate. We want working women and mothers to be protected, particularly during pregnancy and the nursing period, and we want to ensure social responsibility for maternity protection and promote equality of opportunity between men and women. That was why we voted the way we did.
Original Spanish: Mr. PENROD (Government delegate, Costa Rica) — I want to take the floor in order to explain the vote cast by Costa Rica on this particular subject. Costa Rica took the decision to abstain from the vote once we had made a general comparative analysis of the protection provided in the Maternity Protection Convention (Revised), 1952 (No. 103), and in its revision which was submitted for voting and approved today, we identified certain areas in which we appeared to have moved backwards and reduced the level of protection provided.
We know perfectly well that the ILO Constitution enables us to incorporate instruments which might not go as far as national legislation, and this does not impede their application. Costa Rica did not ratify the Maternity Protection Convention (Revised), 1952 (No. 103), but our legislation, even though we are a developing country, provides greater protection than the provisions of that Convention.
This revised instrument that has just been adopted has perhaps made some steps in the right direction; however, it does not represent a significant change for Costa Rica, and, therefore, it will not lead to a substantial improvement for our people.
We understand that the negotiation carried out in order to make the application of this revision more rational and more flexible was intended to increase the possibility of covering of maternity protection throughout the world. However, we think that in trying to do this, we have fallen into the trap of applying excessive flexibility, which has actually, or at least as we see it, gone beyond the limits within which it should have been applied.
In short, that is why Costa Rica abstained from voting on this particular proposal.
Original French: Mr. BRUPBACHER (Government adviser and substitute delegate, Switzerland) — Switzerland abstained on this vote. It is a tradition in my country to ratify international labour Conventions when it gives a positive vote in the plenary. Swiss practice, with reference to the ratification of ILO Conventions, is that the Government proposes the ratification of a Convention when it is in line with existing Swiss legislation. The revised Convention on maternity protection does not correspond to Swiss legislation, because the people of Switzerland rejected a draft Federal Bill on maternity insurance in a referendum held on 13 June 1999.
Since then, the Federal Council — that is to say the Swiss Government — has announced its intention of submitting a possible solution about maternity protection to Parliament. Depending on what happens, the Swiss Government might look again at its position vis-à-vis relevant international labour Conventions.
Original French: Mr. VANDAMME (Government delegate, Belgium) — Belgium is delighted to see that this Convention has been adopted, having voted in favour of it. The adoption of this text will help to guide standard-setting policy in the future.
For Belgium, it is important that the ILO should regularly revise its standards on issues of significance to the world of work.
Maternity protection was clearly such an issue, and its importance and significance has been highlighted by work done under
the aegis of the United Nations and also within our Committee which was able to draw on a wide pool of expertise. The
objective of protecting the rights of women at work is no less important today than it was in the past.
We all agreed on that goal, but perhaps there was less agreement as to the method by which the goals should be achieved. Some people sought to make the work a test case for a rather abstract discussion on the future of standard-setting policy. Fortunately, the Conference has been able to adopt this Convention, showing how effective the Conference can be.
Belgium will be able to ratify the Convention, once we have adapted our legislation. However, it does not want to base its action on a European directive, which does not go as far as this Convention does in a number of areas.
As to lessons to be drawn for the future of standard setting, we believe that there are several points to be made. Firstly, the Conference has shown that it is interested not in abstract work but in specific, tangible proposals, submitted by the Office, on important subjects. Maternity protection is such a subject.
Further, it is inevitable in a legal text that people will attempt to propose solutions to real problems. We believe, however, that a certain amount of flexibility within the text will allow those countries which may be a bit hesitant about this today to improve maternity protection, if they have the genuine political will to do so. Political will is needed for ratification. Technical assistance from the ILO and a sharing of expertise with countries which already have relevant legislation should encourage such countries to take the necessary steps.
Looking to the future, then, I believe that it is important that the Office continues to select subjects that are of undeniable practical importance. Secondly, the Office must make proposals for the revision of texts and not get bogged down in abstract discussions.
Attention should be paid to achieving ratification on a broad basis. I dare not believe that in 50 years’ time the number of ratifications of this Convention will be no higher than that for the previous Convention. We do not believe that systematic reference to flexibility clauses included in national laws is as effective in political terms as guaranteeing economic and social rights in a manner that respects the pace of development, a process to which women throughout the world certainly make a major contribution.
Mr. MELENDEZ (Workers’ delegate, Belize) — On behalf of the tripartite delegation of Belize, we voted in favour of
maternity protection as a tripartite body.
Belize ratified the ILO Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144), in March 2000. We believe in a new paradigm of peaceful coexistence and a high road approach for economic development.
After reviewing the revision of the Maternity Protection Convention (Revised), 1952 (No. 103), we were sure and positive that this could be implemented in our country, especially with the flexible clause that was added in national law and practice.
Belize believes in social dialogue, employment and career needs. Belize is looking forward to the assistance of the ILO for the proper implementation and monitoring of standards.
As you are all aware, Belize is one of the 24 countries that have ratified the eight core labour standards, and especially No. 182.
We are very proud to be part of this Conference and we are sure that through the maternity Convention, as revised, our
women will have more rights, more privileges and benefits, because being partners in social dialogue and representative of a
very peaceful and democratic country in the heart of Central America, and in the centre of the Caribbean basin, we know
that we can be the only bridge that can unite the region in Central America and the Caribbean.
The tripartite delegation voting for the first time today as a tripartite body, discussed the issue and consulted in every way possible to ensure that we did the correct thing. So, then, we voted as a tripartite body in favour of this maternity Convention.
Final record vote on the Recommendation concerning the revision of the Maternity Protection Recommendation, 1952.
Original Spanish: The PRESIDENT — I propose that we now move to the record vote on the Recommendation on the revision of the Recommendation on Maternity Protection 1952, the text of which can be found in Provisional Record No. 20B.
(A record vote is taken.) Result of the vote
[The detailed results of the vote will be found at the end of this Provisional Record.]
Original Spanish: The PRESIDENT — The result of the vote is as follows: 315 votes in favour, 16 votes against, with 108 abstentions. Since the quorum is 267 and the required two-thirds majority is 221, the Recommendation on the revision to the Recommendation on Maternity Protection, 1952, is adopted.
(The Recommendation is adopted.)
Updated by HK. Approved by RH. Last update: 16 June 2000.