87th Session
Geneva, June 1999
Report of the Committee on Maternity Protection |
1. At its first sitting on 2 June 1999, the International Labour Conference set up the Committee on Maternity Protection. The Committee was originally composed of 184 members (77 Government members, 46 Employer members and 61 Worker members). To achieve equality of voting strength, each Government member entitled to vote was allotted 2,806 votes, each Employer member 4,697 votes and each Worker member 3,542 votes. The composition of the Committee was modified ten times during the session and the number of votes attributed to each member adjusted accordingly.(1)
2. The Committee elected its Officers as follows:
Chairperson: |
Ms. A. Andersen (Government member, Denmark) at its first sitting; |
Vice-Chairpersons: |
Ms. A. Knowles (Employer member, New Zealand); and Ms. U. Engelen-Kefer (Worker member, Germany) at its first sitting; |
Reporter: |
Ms. L. Samuel (Government member, Cyprus) at its ninth sitting. |
3. At its 17th sitting, the Committee appointed a Drafting Committee composed of the following members: Ms. S. Khribch (Government member, Morocco), Mr. F. Dreesen (Employer member, Denmark), Ms. J. Beresford (Worker member, New Zealand), and the Reporter of the Committee, Ms. L. Samuel (Government member, Cyprus).
4. The Committee held 19 sittings. The Committee had before it Reports V(1) and V(2) prepared by the Office on the fifth item of the agenda of the Conference: "Maternity Protection".
Introduction
5. The representative of the Secretary-General presented Reports V(l) and V(2), which had been prepared by the Office to serve as a basis for the Committee's discussions, and in particular the Proposed Conclusions at the end of Report V(2). Report V(l), which outlined recent developments in law and practice in member States, noted the challenge of meeting the maternity protection needs of working women at a time when more women than ever remained economically active during their childbearing years. Report V(2) was prepared on the basis of replies to a questionnaire sent out to member States. The large number of replies received -- from 112 governments and an even larger number of employers' and workers' organizations -- reflected the importance of maternity protection as a prerequisite to women's full participation in the labour market. Several replies had stressed that maternity protection was essential in promoting gender equality because women's reproductive role was one of the significant reasons for discriminatory practices. Health protection for pregnant women and nursing mothers was also stressed by many respondents as a key element. Many replies emphasized that the new standards should take into account changes in national law and practice since 1952. Many viewed the revision process as an opportunity to adopt new standards which, while ensuring protection, would provide greater flexibility in defining and implementing particular measures.
6. The representative of the Secretary-General highlighted the content of the Proposed Conclusions and the major issues taken into account in drafting them. Maternity protection schemes were complex and varied considerably between countries. They incorporated diverse elements, which were provided for through various legal instruments, the nature and scope of which varied widely. Many ILO constituents had expressed the view that ILO instruments should establish general principles in terms sufficiently flexible to accommodate different national situations and levels of development. This would facilitate broad ratification. The Committee was charged with the responsibility of developing international standards on maternity protection which would have global relevance. The Proposed Conclusions reflected a number of changes with respect to Convention No. 103 as regards the provisions concerning scope of application, leave, cash benefits, financing and employment security. The scope provision of Convention No. 103 had been problematic due to the combination of extreme detail in definition and the possibility of broad exclusions. Point 6(1) provided that the new instrument would apply to all employed women, with Point 6(2) allowing Members to exclude limited categories of workers or enterprises, after consultation with employers' and workers' organizations, if application raised special problems of a substantial nature. As regards leave, the 12 weeks established by Convention No. 103 remained unchanged, although two sub-points had been included to address the concerns of Members which supported a longer leave period. The Office had also made provision for "additional leave" in Point 8(2) in the event of illness, complications or risk of complications in connection with a worker's pregnancy or confinement, without seeking to determine the manner in which such leave should be considered. As regards cash benefits, Convention No. 103 specified that payment would be provided either out of compulsory social insurance or public funds. In contrast, the Proposed Conclusions with a view towards a Convention offered Members the choice between payments based on earnings or the payment of an appropriate flat rate.
7. The replies to the questionnaire revealed the complexity of the financing of benefits, with cash benefits and medical benefits in some countries being provided through separate systems with different funding mechanisms, or through a mix of public and private sources. Given this complexity and variety of financing arrangements, there was strong support for allowing individual countries to determine the approach most suitable to their national circumstances. A number of replies stressed that public funds were an important complementary source of benefits for women workers in need who did not qualify under social insurance, or as a form of social assistance where no social insurance scheme existed, or if other funding was not available. Although Article 4(8) of Convention No. 103 provided that employers would in no case be individually liable for the cost of maternity benefits due to women employed by them, the Office did not include this provision in the proposed text. Concerns had been expressed that it would pose an obstacle to ratification for a number of countries, where maternity benefits were financed, at least in part, by employers. Other respondents believed that individual employer liability for the cost of maternity benefits might have a negative impact on the hiring and retention of women workers.
8. Following the almost unanimous support for protection against dismissal due to pregnancy or childbirth, Point 11 had been drafted to provide a longer period of protection, although the prohibition against dismissal was no longer absolute. It did not extend to grounds unrelated to pregnancy or childbirth and its consequences or nursing. Point 12 was added to ensure that maternity did not result in discrimination in employment.
9. In concluding, the representative of the Secretary-General said that the Proposed Conclusions contained proposals allowing for progressive implementation with regard to scope, and with regard to benefits in countries with insufficiently developed economies and social security systems. The periodic review provision would encourage progressive or continuing improvements at the national level with regard to the length of leave and the rate of cash benefits.
General discussion
10. Before presenting the position of the Employer members on the Proposed Conclusions, the Employer Vice-Chairperson noted that this was the first time in the history of the ILO that the Chairperson and Vice-Chairpersons of a Conference Committee had all been women. Although she welcomed this development, she emphasized from the outset that maternity protection did not just concern women, but was a responsibility shared between men and women and between governments and employers. Employers had a responsibility to ensure that adequate protected leave was provided to the women concerned and governments had a responsibility to ensure that mother and child had adequate levels of support during the period when the mother was not working. But employers also had a right to expect not to carry undue financial and compliance costs, and governments had a right to set national policy that reflected the economic and social expectations of the wider community.
11. Although maternity protection had always been a high priority on the ILO's agenda -- the first Convention on this subject was adopted in 1919, when the Organization itself was founded -- the Maternity Protection Convention (Revised), 1952 (No. 103), had been ratified by only 37 countries, i.e. less than 20 per cent of the possible total. This low take-up rate was no surprise to the Employer members who had consistently argued against the prescriptive and inflexible nature of Conventions adopted by the ILO. Convention No. 103 clearly fell into this category. They firmly believed that any revised instrument must avoid repeating the erroneous "one-size-fits-all" approach, in favour of declarations of principle to which all three social partners could subscribe, in the light of their individual domestic realities. In sharp contrast to Convention No. 103, the Equal Remuneration Convention, 1951 (No. 100), had been ratified by 137 countries and the Discrimination (Employment and Occupation) Convention, 1958 (No. 111), by 132 countries. The non-prescriptive approach was clearly one that worked and it was the one which the Employer members advocated. For the Employer members, the discussion on maternity protection must reflect the need for a balance between the protection of a woman's safety and health, her job security during pregnancy and following the birth of the child, and the protection of employers from undue monetary, compliance and operational burdens. To get the balance wrong would not only lead to another unratifiable instrument but might also contribute to diminishing employment opportunities for women of childbearing age. Fundamental to this balance was the need to ensure that individual employers were not made liable for full direct monetary costs of individual employees. Otherwise, employers might well prefer to hire men rather than women and that would undermine women's opportunities on the labour market, leading to the Convention having an unintended impact of discrimination against women of childbearing age. A further aspect of this balance concerned the two distinct threads which ran through the Proposed Conclusions: one relating to the removal of discrimination and the other to what were essentially social security benefits. Anti-discrimination principles should apply universally to persons in employment. However, social security benefits for periods of maternity leave were often accompanied by qualifying periods which depended on length of service or contributions to insurance schemes, with exceptions relating to levels of earnings, or categories or status of employment. These two apparently contradictory threads would have to be woven together in an acceptable way if the fabric of the instruments were to be robust.
12. In concluding, the Employer Vice-Chairperson said that the ILO had clearly taken note of the difficulties encountered by countries in the ratification of Convention No. 103 and had moved away from the prescriptive provisions of many instruments of the past. She commended the Office on its efforts and said that the Proposed Conclusions clearly identified the issues which the Committee needed to address.
13. The Worker Vice-Chairperson, also commending the Office on its preparatory work, agreed with the Employer members that maternity protection was a matter of shared concerns and responsibilities and that it was necessary to strike a proper balance in this respect. However, although instruments needed to be flexible, excessive flexibility could result in instruments that set no real standard. The Committee must seek a sensible compromise in order to establish minimum standards, which provided both sufficient substance and the necessary flexibility and adaptability to the conditions in member States. Similarly, although wide ratification was an important goal, the real fruits of an instrument would be reaped only with its practical application. It was well known that wide differences existed in the practical application of texts, and maternity protection was no exception to this. However, over the past few decades, the role played by women in society had undergone substantial changes, with more and more women of childbearing age now employed outside the home. Similar changes had also occurred in working conditions, particularly in the intensity of work. Greater emphasis was now being placed on productivity and increasing demands were being placed on women workers, including physical demands likely to affect their health. For the Worker members, it was important for the instrument to cover as many working women as possible, with account being taken of their cultural, religious and national backgrounds. It was important for workers to know how long and in what ways women would be protected. Legally binding commitments should be balanced with the interests of governments, enterprises and of women themselves. There could be no deterioration in women's rights. The new instruments would have to guarantee the financial protection of workers during their maternity leave if the intrinsic value of such leave were to be maintained. This must be ensured by a legally binding framework for income replacement. Finally, the provisions would have no purpose without the provision of adequate protection against the dismissal of pregnant workers or nursing mothers. The Worker Vice-Chairperson supported the adoption of a Convention and a Recommendation, but emphasized that the Convention should contain a sufficient degree of legally binding detail, and be forward-looking enough for the next century.
14. The Government member of Croatia said that the discussions on the Proposed Conclusions should reflect the new emphasis in ILO policy on gender mainstreaming, and the promotion of gender equality. The line between protection and discrimination should be examined carefully. Regarding parental leave, reference should be made to the Workers with Family Responsibilities Convention, 1981 (No. 156). The Committee should aim for modern standards that would help both women and men reconcile their family and work obligations. She wondered whether the Proposed Conclusions provided fewer rights than those established in Convention No. 103 and asked for clarification from the Office on whether a revised Convention could reduce the rights set out in a Convention. She also pointed out that replies of the Croatian Government were not reflected correctly on page 205 of Report V(2). In reply, the representative of the Legal Adviser stated that each session of the Conference was sovereign and free to take such action as it considered appropriate. On certain points, the proposed new Convention went beyond Convention No. 103, by establishing broader coverage and more limited possibilities of exclusions. On others, however, it introduced greater flexibility, for example, with regard to compulsory leave or the financing of benefits. In two respects the Proposed Conclusions with a view to a Convention went less far than Convention No. 103: they replaced the absolute prohibition of dismissal during maternity leave by a prohibition of dismissal except on grounds unrelated to the pregnancy or childbirth and its consequences or nursing; and they no longer provided for the right to take nursing breaks, which was dealt with in the Recommendation.
15. The Government member of Australia expressed his Government's support for the new revised instruments addressing maternity protection. The new Convention should establish a framework for appropriate minimum protection which reflected the principles of non-discrimination in employment, health protection, maternity leave, and support in living standards through both medical and cash benefits. The standards should be relevant in respect of the level of protection and capable of extensive ratification. The text of the Preamble could be strengthened to reflect the objectives and principles of the proposed Convention, but the wording of any amendment would depend on the outcomes of the discussions. He asked the Office to provide clarification regarding this point.
16. The representative of the Legal Adviser responded that the Preamble did not form part of the substantive provisions of a Convention or Recommendation and could not give rise to obligations. Its purpose was to set out the context and circumstances in which the instrument had been adopted. As part of the body of international labour standards, Conventions and Recommendations formed part of the general context in which each Convention and Recommendation was adopted. While preambular paragraphs might be of general interest, they were likely to be the subject of numerous amendments, and their examination at this stage could detract from the time available for the consideration of the substantive provisions of the proposed instruments.
17. The Government member of Canada expressed support for the development of a revised Convention and Recommendation which would be effective and meaningful. The instruments should be simple, focused and capable of wide ratification and implementation. With regard to compulsory leave, it would be preferable to provide an appropriate and sufficiently generous period of maternity leave which the employee could freely arrange according to her circumstances. The Proposed Conclusions with a view to a Recommendation relating to employment protection, non-discrimination and parental leave were fully supported.
18. The Government member of Colombia stated that the Constitution of her country went even further than the Proposed Conclusions. The rights and prerogatives granted to women during pregnancy and after childbirth had to be strictly complied with and could not be renounced.
19. The Government member of China noted the importance of maternity protection at a time when more women were in the labour market and returned to work after childbirth. New instruments which took into account the cultural, social and economic circumstances of each country would gain broad support.
20. The Government member of Egypt stated that, in her country, labour law provided for the protection of women workers. International provisions had been integrated into Egyptian legislation, in acordance with traditional religious practices. The legal protection of women and children went beyond the new proposed standards. The Government member expressed a reservation in principle on the definition of "working woman" and "child".
21. The Government member of India highlighted the importance of maternity protection for working women in the organized and unorganized sectors. In India, only a very limited proportion of the labour force was covered by labour legislation providing leave, medical care and cash benefits to working women. It was not possible for India to cover working women in all types of employment under existing legislation. Social security and labour welfare measures would be extended to workers in the organized sector in a phased manner. The proposed Convention should be flexible so that governments could implement its provisions in a phased manner in different sectors of the economy. Otherwise it might not be possible to ratify the new Convention in the near future.
22. The Government member of Japan stated that, as more women were working during pregnancy and after childbirth, it was important to ensure that women's maternity was respected at the workplace and that a woman could give birth with peace of mind while retaining her employment. Law and practice concerning maternity protection varied greatly from country to country and the revised instruments needed to be realistic and flexible in accordance with divergent national situations. Convention No. 103 specified higher requirements than the national laws and regulations of member countries and thus the number of ratifications had remained low.
23. The Government member of the Libyan Arab Jamahiriya stated that women and men were equal in terms of human rights, but the relations between the sexes had been regulated by holy texts since the earliest times. As a result, women had been granted special protection and special privileges. These included, for example, the possibility of part-time work, the provision of childcare facilities and transportation for working women, maternity leave of three months and additional sick leave in case of complications. The definition of "woman" and "child" in the Proposed Conclusions was provocative and incompatible with national legislation and sacred texts. It would raise problems for Muslim countries in particular with regard to the issue of illegitimate children. The proposed definition, if accepted, could raise problems regarding ratification of the new Convention.
24. The Government member of Norway stated that, in spite of their advanced labour legislation and the high priority given to parental rights, none of the Scandinavian countries had ratified Convention No. 103. It was vital that the Committee aimed for a flexible Convention that could gain the widest possible ratification and, at the same time, provide essential rights concerning pregnancy, birth and early childhood. The time had come to start a process towards granting equal rights for both parents with regard to parental leave in early childhood. The Convention should at least facilitate the adoption of national laws and regulations which included fathers, in line with Point 25 of the Proposed Conclusions. By choosing a gender neutral title for the Convention, the Committee could signal that men as well as women had obligations and rights concerning these matters. A proposal for such a title could be "Rights concerning pregnancy, birth and early childhood".
25. The Government member of Papua New Guinea supported a flexible, facilitative, rather than a prescriptive, approach to setting standards for maternity leave. The new Convention should be rights-based to secure the dignity of women at the workplace. The new standards should accommodate differing national situations and levels of development while laying down basic rights. It should leave the mechanisms for application to national law and collective bargaining. Papua New Guinea supported the definition of "woman" under Point 5 of the Proposed Conclusions.
26. The Government member of the Philippines stressed the continuing importance his Government attached to promoting the health, safe motherhood and the economic well-being of pregnant and nursing women. The revision process should result in maternity protection instruments which were more responsive and relevant to the needs of women at work. The Government would be examining proposals for a longer period of leave and one-hour nursing breaks. These protective measures would have to be examined carefully in view of the possibility that they could lead to a reluctance to hire women. Balance would have to be achieved to ensure safety and health for women workers while keeping the added costs of the employer within tolerable limits.
27. The Government member of Slovakia stated that the legal protection of women in his country was based on harmonizing living, family and working conditions. Providing special working conditions for pregnant women and mothers enabled them to participate in work while taking into account their reproductive role and social function in bringing up children.
28. The Government member of Sudan explained the protective aspects of national legislation regarding maternity, noting in particular the prohibition of night work, the prohibition of types of work prejudicial to a woman's health, and forced overtime. Such protection was in conformity with religion and culture. The new instruments should have sufficient flexibility to respond to the specific characteristics of member States. He supported the objections raised by previous speakers concerning the definition of a "working woman". Current national discussions had focused on the possible extension of maternity leave. Such an extension would be a significant contribution for parents who wished to care for their child as long as possible. However, such prolonged leave could result in the loss of qualifications. Questions of financial security and dependence on the other partner could not be ignored. The proposal to prolong leave must be sensitively approached so as not to result in a reduced general level of protection for employees.
29. The Government member of Sweden noted that although the Scandinavian countries' maternity protection and parental leave policies had been identified as being the most advanced, not a single Nordic country had ratified Convention No. 103. The detailed implementation requirements of that instrument had been an impediment to ratification. New standards should take into account women's increased labour market participation and their continued experience of discrimination in hiring due to their reproductive function. The Government of Sweden advocated a two-part Convention, the optional second part of which could be accepted at the time of ratification or at any later date. This second part, aiming to stress gender equality and rights in working life, should focus on parental leave and benefits. The Convention should not consist only of minimum standards; it should define basic aims and provide member States with guidance for the future. The new instruments should define a framework for basic protection which member States could build upon and amplify. The instrument should emphasize the shared familial responsibilities of both parents, enabling them to combine work and family. The best way to support parents was to allow both to be economically active. The optional second part of the Convention should provide for parental leave and benefits appropriate to parents' needs. The primary aim of a parental benefit was the child's welfare, but a further aim was equality between men and women. Other ILO instruments such as the Workers with Family Responsibilities Convention, 1981 (No. 156), and its accompanying Recommendation No. 165, considered that family responsibilities were shared by both sexes. The Beijing Declaration and Platform for Action and the UN Convention on the Rights of the Child adopted the same perspective. The new instruments should highlight the participation of the father and provide guidance to countries wishing to modernize their legislation.
30. The Government member of the Syrian Arab Republic supported the Worker members' statement regarding the importance of taking into account national conditions, but examples of different applications in practice would be useful. He also shared the concern of the Government member of Croatia that the revised instruments could provide for lower standards of protection. He questioned the meaning of additional leave in the Proposed Conclusions, and suggested that it should be referred to as additional leave for sickness, with a specified maximum duration period. He further noted that the Syrian Labour Code devoted a special chapter to the employment of women. It provided for maternity leave, nursing leave, the prohibition of night work for women and the establishment of crèches for the children of women working in factories.
31. The Government member of the United Kingdom referred to women's increased participation in the labour market and the increase in the types of jobs they performed. Equality of opportunity was essential since women made a vital contribution to the economy. Maternity protection should provide essential health and safety measures for women at work. In addition, maternity protection should help close the gender gap by ensuring the right to return to work, without a reduction in status or conditions of work. Maternity protection was good for business. Employers needed to retain skilled staff in order not to incur costs for training and recruitment. The new standards would need to strike a balance. Minimum standards needed to provide genuine protection for the health and safety of the woman and the child without placing an unnecessary burden upon the employer. He emphasized the importance of formulating standards which were focused and which complemented related instruments.
32. The Government member of Zimbabwe believed the Proposed Conclusions were flexible enough to receive wide acceptance. In Zimbabwe, although there was a social security scheme, the financing of maternity benefits was being borne by employers. This had been an obstacle to ratification of Convention No. 103 which prohibited individual employer liability. The language of the Proposed Conclusions would allow his Government to reconsider its position regarding ratification of the Convention.
33. The Government member of Kenya warned that the Committee must be careful to ensure that by extending protection the new instruments would not result in increased discrimination, especially in light of high unemployment. The question of cash benefits needed to be addressed at country level and how they should be paid needed to be thoroughly discussed. Parental leave might be difficult to implement due to economic constraints and cultural factors.
34. The Government member of South Africa reflected that in spite of progress, pregnant workers were still subjected to inequality of treatment at work and were still exposed to risks such as job loss, suspension of income and deterioration of health. For many women, "maternity protection" remained an empty phrase. He stated that the revision was long overdue since the provisions of Convention No. 103 have been overtaken by recent trends in law and practice. The protection of women's health and employment rights had to be strengthened. The instrument should apply to all women. Coverage for those working in atypical employment should be considered. Discrimination should not be allowed on the basis of the nature of work or marital status. The Committee should aim to develop standards that were targeted, realistic and comprehensive. The new standards should build on the core elements of maternity protection, set the course for further development, and provide guidance on measures to ensure practical application.
35. The Government member of Venezuela, supporting the revision, observed that her country had always advocated women's causes, and that the legislation of her country went beyond the requirements of Convention No. 103.
36. The Government member of the United States also supported the revision of Convention No. 103. The Committee's work should provide flexible guidelines reflecting the reality of the rights of women in today's workplace to make choices in accordance with their individual needs. To enable wide ratification, the new instruments should be sufficiently flexible to take into account the differing national circumstances of ILO member States.
37. The Government member of Morocco supported the revision of the Maternity Protection Convention (Revised), 1952 (No. 103), to the extent that the new instruments would be flexible and would respect Muslim culture and religion.
38. The Government member of Mexico asserted that maternity protection related to the very foundation of society, the family. Women were increasingly joining the labour force while simultaneously filling an essential role within the family. The Government of Mexico supported all efforts to guarantee women's rights, while at the same time keeping in mind the need for balance. The instruments should take into account economic and social conditions in member States, so that they did not result in further discrimination.
39. The Worker Vice-Chairperson noted almost all governments had emphasized the importance of maternity protection. The great majority of governments seemed to consider it necessary to develop legally binding international labour standards. She reiterated the need to define the balance between economic and social conditions and the appropriate protection of women, children and families. Conditions of employment for women should not be worsened, but improved. Many governments had made forward-looking proposals to reconcile work and family responsibilities for men and women.
40. The Employer Vice-Chairperson noted that in order to ensure the maximum number of ratifications, the instrument must be flexible, must recognize the differences in law and practice within different jurisdictions, and must reflect realistic expectations. The Convention should focus on principles, whereas contentious issues and details should be placed in the Recommendation. She stressed that governments should not pass on the cost of cash benefits to individual employers; otherwise women's job opportunities would be likely to diminish. Balance would be paramount to avoid unnecessary financial burdens on employers and to provide adequate protections in a clear and defined manner.
41. The representative of UNICEF noted the "progress in law, an evolution in workplace practice and rising social expectations regarding the rights of working women during their childbearing years" cited in the Office report. Significant advances had been made as well in scientific knowledge of the health needs of women and their children during the first months of life. The contribution of breastfeeding to improving both maternal and child health was recognized and had become a part of national health policy for compelling medical reasons. The desire to achieve a more widely ratified, but less prescriptive Convention should not come at the expense of the rights of women and children. The health implications of revising Convention No. 103 had been raised at the 26th Session of the UN Administrative Committee on Coordination, Sub-Committee on Nutrition. It was felt that the review process might profitably be extended by one year so that Ministries of Labour could consult with Ministries of Health. Governments and the international community needed to harmonize exclusive breastfeeding for at least four, but preferably six, months with the duration of paid maternity leave. UNICEF would encourage the reinstatement in the Convention of the right to two paid half-hour breastfeeding breaks per day, a woman's absolute right to at least six weeks of postnatal leave, and the funding of benefits through social insurance or public funds, rather than by employers.
42. The representative speaking on behalf of the International Federation of Social Workers urged the Committee to ensure that the revision of Convention No. 103 would effectively address the specific requirements of pregnant and breastfeeding workers. The contribution made by women in childbearing and breastfeeding should be recognized and compensated. By shifting to the Recommendation the right to breaks for breastfeeding or the expression of breastmilk, a normative standard would result which could negatively affect the design of national legislation for years to come. Only those women workers with access to workplace breaks and facilities supportive of breastfeeding or with sufficient negotiating power with their employers would be able to combine breastfeeding with paid employment. A period of paid maternity leave was critical to enabling employed women to breastfeed. The ability of women to take leave was contingent on an accompanying payment and expanded leave eligibility criteria. The health and economic advantages of breastfeeding to women workers had been acknowledged. For employers, advantages included reduced absenteeism and a higher rate of return to work after childbirth. Society as a whole benefited from reduced health-care costs.
43. The representative speaking on behalf of the NGO Working Group on Women's Employment and Economic Development considered the principles contained in the Maternity Protection Convention, 1919 (No. 3), and the Maternity Protection Convention (Revised), 1952 (No. 103), sound. The new instruments should provide guidance which would enable countries with widely different social traditions and economic circumstances to consolidate achievements and make realistic progress. Consolidation and progress were key. Flexibility should not lessen the effectiveness of measures which enabled women to combine pregnancy and lactation with labour force participation and the demands of their jobs. While the emphasis on health protection was welcome, other needs and aspirations of workers should also be addressed, notably equality of opportunity and treatment for pregnant and nursing women. The Proposed Conclusions fell short of expectations with regard to the protection and promotion of health, including the broad issue of reproductive health, and also with regard to the funding of benefits. Individual employers should not be liable for the cost of benefits due to the women they employed. The Committee was strongly urged to find language for the Convention, which would encourage member States to identify ways and means to pool the necessary resources. She felt that three considerations might facilitate the work of the Committee: women had a right to bear children; they had a right and, increasingly, an obligation to work; and these rights and duties involved responsibilities for women, their families, enterprises and society. The new standards should protect women's health, their employment opportunities and job security. They should also promote women's contribution to the stability of families, to the welfare of enterprises and to the economy.
44. The representative of the International Council of Nurses noted that nurses had a particular interest in maternity protection, both as health workers and as women workers. Citing the provisions of the UN Convention on the Rights of the Child, she urged the Committee to provide the needed legal framework to guarantee women workers the right to breastfeed for at least six months. Maternity leave should be extended to at least 16 weeks to facilitate the social development of the child and the mother's return to optimal health. Removal of additional leave for any period elapsing between the presumed date of confinement and the actual date of confinement would result in a shorter shared time for mother and child post-delivery. Optimal conditions should be provided for job and economic security, freedom from discrimination, occupational health and safety, support of parents' child-rearing responsibilities and the right of women to choose their primary health-care provider.
45. The representative of the International Women Count Network, stressing that all mothers were working mothers, cited the economic value of women's unwaged work, which had been estimated by the UNDP to amount to US$11 trillion in 1995. The intense work of infant care, of which breastfeeding was a major part, was devalued in the Proposed Conclusions, which had shifted provisions on nursing breaks to the Recommendation. This work represented a major contribution of women to the economy and to society. Paid maternity leave should be strengthened. The scope of the instruments should include women working in the informal sector, in domestic occupations and in agriculture. Those workers needed the same protection as all other working women.
Consideration of the Proposed Conclusions
contained in Report V(2)
A. Form of the instruments
Point 1
46. The Government member of Norway submitted an amendment to insert, after the words "international standards", the following words: "related to rights concerning pregnancy, birth and early childhood". In her view, the new instruments should take into consideration parental leave. Nonetheless, the debate on this question might be usefully postponed until the question of the possible inclusion of an optional second part to the Convention relating to parental leave was decided.
47. The Employer Vice-Chairperson supported deferment of discussion on Point 1 until after the content of the possible instruments was decided. She stated that both the title and the form of the instruments should be decided only once the Committee knew the content of the new instruments. The Worker Vice-Chairperson supported the proposal to defer discussion, since the earlier proposals of the Government member of Sweden regarding parental leave merited further deliberation. The Government members of Croatia, Cyprus, the United Kingdom and the United States also supported postponing discussion on the amendment to Point 1. The consensus of the Committee was thus to defer discussion on this Point to a later time.
Point 2
48. The Employer Vice-Chairperson proposed postponing the discussion of Point 2 until the content of the new instruments was known. The Worker Vice-Chairperson questioned whether it was possible to discuss a Point for which no amendments had been submitted, as was the case here. The representative of the Legal Adviser stated that the Committee might decide to discuss this Point, without amendment, at any time. However, the Point could not be reopened to amendment. The Worker Vice-Chairperson felt that it was preferable to discuss the Points in order and suggested proceeding with the discussion of Point 2, a view supported by the Government members of Croatia and Namibia. The Government member of the United Kingdom noted that the vast majority of replies to the questionnaire from governments, employers' and workers' organizations had favoured the adoption of a Convention and a strong majority had supported the adoption of a Recommendation supplementing a revised Convention. The Government member of Cyprus considered it normal to decide at an early stage on the form of the instruments in order to know where substantive provisions would be placed. The Government members of Croatia, Cyprus, Guinea, the Libyan Arab Jamahiriya, Switzerland, the United Arab Emirates, and the United Kingdom supported adoption of the Point as drafted. The Employer Vice-Chairperson, noting that the Employer members had attempted to deal with this question in a reasonable manner, moved to put to a vote the postponement of discussion on Point 2. She submitted that it was inappropriate, if not impossible, to discuss the form of an instrument before issues of substance, which would have an impact on the form of an instrument, were clear.
49. Put to a vote, the motion to postpone discussion of Point 2 was defeated by 186,567 votes against, 109,935 in favour, with 1,449 abstentions. Point 2 was adopted without change.
Point 3
50. The Government member of Australia proposed an amendment to delete all the words after the second reference to "1952" and to replace them with the following text:
in order to recognize the diversity in economic and social development of member States and the state of the protection of maternity in national law and practice.
Point 3 as worded in the Proposed Conclusions, in particular the phrases "significant economic and social developments in member States" and "the improvements of the protection of maternity in national law and practice", could be construed to imply that the new Convention would contain higher standards of protection than those found in Convention No. 103. The new wording better reflected the element of flexibility, which member States might take into account when considering ratification. The Government members of Canada, Croatia, Denmark, France, Italy, New Zealand and Switzerland supported the amendment.
51. The Worker Vice-Chairperson opposed the proposed amendment, strongly preferring the text proposed by the Office. In light of the Governing Body's decision which had led to the revision, it was important that the new instrument take into consideration the economic and social developments and the improvements in law and practice regarding maternity protection.
52. The Employer Vice-Chairperson expressed full support for the proposed amendment, citing the need to recognize diversity in economic and social development of member States. The new Convention should take these diverse situations into consideration. The Government members of Côte d'Ivoire, Egypt, Guinea, Namibia, Spain, the United States and Zimbabwe also expressed their support.
53. The Government member of Cyprus expressed dissatisfaction with the phrase "the state of protection" because it seemed to convey that the protection was static. As a solution, she proposed a subamendment to replace the word "state" with the word "development", a proposal which was supported by the Workers' group and the Government members of Barbados, Croatia, Italy, the Netherlands, the Philippines and Spain. The Government member of Switzerland pointed out that the original French version of the amendment already had the nuance intended by the subamendment. The Government member of Australia could accept the subamendment, if it also reflected current law and practice.
54. The Employer Vice-Chairperson preferred the original version proposed by Australia. In the Employer members' view, the word "state" was appropriate because the Preamble was referring to the present situation. She nonetheless proposed a second subamendment which would apply solely to the English text. The deletion of the words "the state" would bring the English text into conformity with the French version which recognized diversity in protection and would lessen the static sense of the proposed amendment in English. The Government member of Spain noted that the Spanish translation of the amendment was quite literal, using "situación" where "state" was used in English. She opposed a subamendment which would accord the English and Spanish texts with the French translation. The Government member of Guinea pointed out that the Employer members' proposed subamendment relied on subtle linguistic questions and was therefore difficult for the French and Spanish speakers to decide. The Employer Vice-Chairperson accepted the wording of the subamendment proposed by Cyprus and it was adopted by consensus.
55. The amendment was then adopted by consensus as subamended. As adopted, it replaced the text following the second reference to the year "1952" with the following text:
in order to recognize the diversity in economic and social development of member States and the development of the protection of maternity in national law and practice.
56. The Employer members submitted an amendment to delete the words "as well as", replace them with a comma and add at the end of the sentence the words "as well as the lack of flexibility of those instruments which has discouraged ratification". This wording would emphasize the main reason for the revision of the instruments and would make clear the new approach to standard setting which moved away from prescription.
57. The Worker Vice-Chairperson requested that the Employer members withdraw their amendment in the light of the previous discussion which had reflected acceptance of diversity in developments among Members. Discussion of such an amendment could entail identifying all the other reasons which might have discouraged ratification. Furthermore, "flexibility" was a vague term.
58. The Employer Vice-Chairperson withdrew the amendment on behalf of her group.
59. The Government members of Egypt and Pakistan submitted an amendment to add the words "and the various legal systems" at the end of the Point, the purpose of which was to provide greater precision. The Worker Vice-Chairperson, while expressing support for the intention of the amendment, believed that the original text was sufficiently broad as it stood, a view which was supported by the Employer members and endorsed by the Government members of Canada and Cyprus. Following further opposition to the amendment from the Government member of Germany, speaking on behalf of the Government Members of the Committee Member States of the European Union (Austria, Belgium, Denmark, Finland, France, Germany, Greece, Ireland, Italy, Luxembourg, the Netherlands, Portugal, Spain, Sweden and the United Kingdom, hereafter referred to as "the Government Members of the Committee Member States of the European Union"), the amendment was withdrawn.
60. Point 3, as amended, was adopted.
Point 4
61. Point 4 was adopted without change.
Point 5
62. The Worker Vice-Chairperson submitted an amendment to delete the words "whether married or unmarried" and replace with "without discrimination whatsoever", and to delete the words "whether born of marriage or not" and replace with "without discrimination whatsoever". Recalling her earlier remarks about the need to take into account different ethnic, cultural and religious backgrounds, she said that the amendment sought to use wording which would be acceptable to the widest number of countries. The Employer Vice-Chairperson, while recognizing the importance of the need to avoid any kind of discrimination, expressed concerns about the impact of the amendment on the provision for exclusions under the proposed text of Point 6(2). The addition of the words "Notwithstanding the provisions of Point 5" at the beginning of Point 6(2) might establish such a linkage. The Government member of Cyprus echoed the Employer members' call for linkage with Point 6(2), as did the Government member of the United Kingdom. The Government member of Croatia, while voicing support for the amendment, requested clarification concerning who would determine the grounds for such discrimination. The Government member of Spain said that the Spanish Constitution and legislation to apply its provisions did not make any difference in the treatment of children and therefore no form of discrimination was possible. Parliament was currently preparing draft legislation for the protection of working parents. In addressing these two issues, the Worker Vice-Chairperson said that the amendment was not intended to affect in any way the exceptions which might be provided for under Point 6(2), and that the Preamble contained a general provision to the effect that account would be taken of national law and practice. Several Government members, including those of Austria, Cyprus, Finland, the Islamic Republic of Iran, Italy, the Libyan Arab Jamahiriya, Sweden, Switzerland, the United Arab Emirates and Uruguay, expressed their support for the amendment.
63. The representative of the Legal Adviser, in response to the request for clarification concerning the meaning of "without discrimination whatsoever" in the text, said that the meaning in an ILO text would be the same as that used in Convention No. 111. As regards this point of definition, she noted that the definition in itself was circuitous and therefore not necessarily indispensable.
64. The Government member of Greece also endorsed the reference to non-discriminatory policies and practices, but said that the new instrument needed to reflect changes which the family had undergone in modern society, where many economically active women were now adopting children who should also be included in the scope of the instrument. She therefore proposed a subamendment for the provision to extend to any child, "including children born in or out of marriage and adopted children". The subamendment was opposed by the Employer members, who said that the situation of children per se was not the subject of the proposed instrument, which concerned the protection of pregnant workers and nursing mothers, i.e. during the period of pregnancy, birth and recovery. A woman who gave up her child for adoption would clearly be covered under the instrument, as would the child, but the provisions should not in her view be used to include children adopted at some later age. The Worker Vice-Chairperson also opposed the proposal on the grounds that it introduced a qualification which was necessarily selective, and that the question of whether adopted children were covered or not should be left to national legislation and practice. Further opposition was expressed by the Government member of Germany and the Government member of the United Kingdom, who said that Convention No. 156 was a more appropriate instrument for considering the matter of adopted children, a view endorsed by the Government members of Australia, Canada and Papua New Guinea. The Government member of the Libyan Arab Jamahiriya reiterated that there was no distinction between adopted and non-adopted children because, under Koranic law, persons other than natural parents could look after children who were not their own, but could not adopt them. This view was echoed by the Government member of Egypt. After a lengthy debate, the Government member of Greece withdrew her subamendment.
65. Although the Employer Vice-Chairperson welcomed the clarification from the Worker members concerning the safeguarding of the provisions of Point 6(2), she pointed out that since the new instrument would apply to all employed women, there might perhaps be no need for Point 5 at all. However, the Worker members rejected the idea of its deletion, maintaining that their amendment was an important element of their objective, and that of the ILO, of promoting consensus between different groups, irrespective of national, cultural or religious backgrounds. In some cases, national law and practice did not distinguish between children, whether adopted or not. The Government member of Mexico said that the Constitution of his country provided protection to all children and prohibited any kind of discrimination.
66. In response to a request for clarification concerning the Office's intentions in drafting Point 5, the representative of the Legal Adviser said that the intention was not to change the meaning of the equivalent provision contained in Article 2 of Convention No. 103. It was not necessary to include in the new instrument a list of prohibited grounds of discrimination, since these were already contained in Convention No. 111. The provision was definitional and did not address the question of scope of the instrument.
67. In the light of the debate, the Employer Vice-Chairperson submitted a subamendment to qualify the reference to "child" by the addition of the words "she gave birth to", which she said would take account of her reservations already expressed about extending coverage to adopted children and focus the instrument on the subject in hand, namely, maternity protection. The instrument should not apply to "any child", but to a child to whom a working mother gave birth, and this linkage should be clearly expressed in the text. The Worker members continued to maintain preference for their own proposal, with the support of several Government members. After lengthy debate, the subamendment submitted by the Employer members was rejected by a vote of 151,011 in favour and 206,199 against.
68. On the understanding that the reference to "without discrimination whatsoever" would not preclude the provision for exceptions under Point 6(2), the Employer members withdrew their opposition to the amendment submitted by the Worker members and Point 5, as amended, was adopted.
Point 6
69. The Employer members submitted an amendment as follows:
Delete Points 6 to 13 and replace by the following:
New Point 6
6(1) Each Member for which this Convention is in force undertakes to declare and pursue a national policy designed to promote, by methods appropriate to national conditions and practice, maternity leave and protection for all employed women with the exception of the self-employed.
6(2) However, a Member might, after consulting the representative organizations of employers and workers concerned, exclude wholly or partly from the scope of the Convention limited categories of workers or of enterprises when its application to them would raise special problems.
6(3) A Member might after consulting the representative organizations of employers and workers exclude wholly or partly from the scope of the Convention workers who do not meet established eligibility criteria.
6(4) A Member which avails itself of the possibilities afforded in the preceding two paragraphs should, in its reports on the application of the Convention under Article 22 of the Constitution of the International Labour Organization, list the categories of workers or of enterprises thus excluded in the reasons for the exclusion and/or list the eligibility criteria that apply.
New Point 7
As an indispensable means of protecting the health of any woman and her child, the woman's entitlement to a period of maternity leave, to protection from dismissal for reasons related to the pregnancy or maternity leave, with adequate means of supporting herself and her child, is the core element of this instrument.
New Point 8
In order to protect the position of women in the labour market, an employer shall not be individually liable for the direct cost of any monetary maternity benefit to a woman employed by him or her without that employer's specific agreement.
70. The Employer Vice-Chairperson introduced the text by stating that the new Convention should focus on points of principle, whereas the supplementary Recommendation should include points of detail. The proposal to delete Points 6 to 13 of the Proposed Conclusions and to replace them with the text above in no way suggested that the substantive questions treated in Points 7 to 13 of the Proposed Conclusions would not be dealt with. They could be appropriately placed in the Recommendation, the less prescriptive instrument. In the Employer members' view, the proposed amendment captured the main elements -- scope, coverage and exclusions -- that a Convention should contain, in a manner similar to that found in the Equal Remuneration Convention, 1951 (No. 100), and the Discrimination (Employment and Occupation) Convention, 1958 (No. 111). The new Point 7 specifically identified the core element of the new Convention as being the woman's entitlement to a period of maternity leave, to protection against dismissal for reasons related to pregnancy or maternity leave and to adequate means of supporting herself and her child. Finally, new Point 8 addressed the question of individual employer liability. The Employer members clearly wished to cover the issues in the proposed text; however, in the interest of wide ratification, the Convention should be limited to points of principle. National law and practice would then determine the best means of implementing these principles. Detailed guidance would be provided in the Recommendation.
71. The Worker Vice-Chairperson declared that under no circumstances could the Worker members accept such an amendment. The deletion of major portions of the Proposed Conclusions would change the whole intent of the draft Convention. The Proposed Conclusions had been drafted according to the replies to the questionnaire. Therefore, discussion should proceed on the basis of that text. The Government member of Cyprus stated that the proposed amendment would change the nature of the instrument from a Convention which provided minimum standards regarding specific aspects of maternity protection, such as the right to leave and protection from dismissal, to a promotional instrument, such as Conventions Nos. 100 and 111. A move to such general principles would be a regression. Speaking on behalf of the Government Members of the Committee Member States of the European Union, the Government member of Germany opposed the amendment on the same grounds. The Government member of Greece noted that the proposal left fundamental rights of women unprotected. The Government members of Australia, Canada, Croatia, New Zealand, Switzerland and the United States opposed the amendment, noting that the degree of flexibility introduced was excessive. The Employer members subsequently withdrew the amendment.
Point 6(1)
72. The Worker Vice-Chairperson introduced an amendment to delete the words "employed women" and replace them with "women at work". In developing countries, and even in many industrialized countries, many women worked in the informal sector. The term "women at work" was broader and more comprehensive than "employed women" and would ensure that women working in the informal sector would be covered by the Convention. The Government members of Croatia, Guinea, Italy and Sweden expressed support for the amendment.
73. The Employer Vice-Chairperson could not support the proposed amendment because it was too broad. The term "women at work" would include women in unpaid employment and in the voluntary sector as well as the self-employed. The obligation on the employer to provide leave and not to discriminate against women in employment was the important point. In the Employer members' view, an employment relationship had to exist in order for these two obligations to apply. The adoption of such an amendment would result in an unratifiable Convention. The Government members of Cyprus and India also opposed the amendment because "women at work" could mean the self-employed, who should not come within the ambit of the Convention.
74. The Government member of the United Kingdom did not support the amendment. He requested clarification from the Office of the term "employed women". He wanted to know whether it meant women employed with a contract of employment that was written or implied or whether the meaning was wider than that and could include the self-employed.
75. The representative of the Secretary-General stated that the term referred to those who had a contractual or legal relationship of employment. National legislation might define that relationship. The representative of the Legal Adviser added that the word "employed" was used in many ILO Conventions to refer to employees, without the term being defined. Some Conventions referred to the term "employed persons" which covered workers with a contract of employment whether expressed or implied. The term was not intended to cover self-employed persons. The intention of the Office was that the term "employed woman" would refer to women workers who had a contract of employment, whether expressed or implied.
76. The Worker Vice-Chairperson proposed to clarify the meaning of their amendment by reference to part of the definition of the term "homeworker" used in the Home Work Convention, 1996 (No. 177). More specifically their intention was to cover "women at work" unless they had "the degree of autonomy and of economic independence necessary to be considered [independent workers] under national laws, regulations or court decisions". The Worker members did not intend that independent workers be covered.
77. The Employer Vice-Chairperson preferred to retain Point 6(1) of the Proposed Conclusions as it stood, rather than including a more complicated definition as in the Home Work Convention, 1996 (No. 177).
78. The Government member of Cyprus, having chaired the Committee on Home Work, was familiar with the definition contained in that Convention. She noted that the discussion had been very difficult and the definition had been drawn up to apply to a specific grey area. It was not a definition that should be applied here. She urged the Committee to keep the text as it stood.
79. The Government member of Guinea proposed two possible solutions to ensure that the instrument would be interpreted properly: either the text of the Proposed Conclusions should be retained, since it implied the existence of a contract of employment, or the term "women at work" should be adopted, specifying that independent workers were excluded. He preferred the former solution. The Government members of China, Colombia, Norway, Spain and Sweden also favoured retaining the Office text.
80. The Worker Vice-Chairperson suggested that a compromise could perhaps be found if the term "employed women" included homeworkers and dependent contract workers, since they accounted for a large majority of women workers in developing countries.
81. The representative of the Legal Adviser noted that in a number of Conventions the term "employed workers" was defined as "persons habitually employed either for wages or for salaries". Whether a worker in a situation of dependency was considered to be in an employment relationship was a matter for national law and practice. That issue was part of the discussions on contract labour in the preceding two sessions of the International Labour Conference, on which no conclusions were arrived at.
82. The Employer Vice-Chairperson recalled the difficulties of the discussion on contract labour, an issue which the Governing Body had decided to look into more closely, subsequent to further work by the Office to determine whether there was indeed a need to cover a third category of workers. She urged the Committee to retain the term "employed women". If in the year 2002, when the Governing Body would review the question of a "third category" of workers, and it might be determined that a third category of workers needed to be covered, then a different term could be adopted.
83. The Worker Vice-Chairperson withdrew the amendment due to lack of support.
84. The Employer Vice-Chairperson announced that, in light of the Office's clarification, the Employer members would withdraw their amendment to add the words "with the exception of the self-employed" at the end of the paragraph.
85. Point 6(1) was adopted without change.
Point 6(2)
86. The Government member of Croatia introduced an amendment to delete paragraphs (2) and (3) of Point 6. In her view, the Convention should apply to all employed women. The definition of "employed women" was clear and there was no need for any further limitations.
87. The Employer Vice-Chairperson was unable to support the amendment. In her view the two paragraphs were necessary to provide individual Members with the ability to determine when, in specific cases and on the basis of limited categories, certain workers or enterprises could be excluded. She cautioned that if such an amendment were accepted, ratification of the instrument would be almost impossible.
88. The Worker Vice-Chairperson saw merit in reducing the possibilities for exceptions, but could not support the amendment.
89. After a number of Governments indicated their opposition, the amendment was withdrawn.
90. The Worker Vice-Chairperson introduced an amendment to delete Point 6(2) and replace it with the following text:
However, a Member might, at the time of ratification and after consultation and agreement with the representative organizations of employers and workers concerned, exclude wholly or partly from the scope of the Convention limited categories of work when its application would raise unique problems of a substantial nature, and provided the health of the woman and child is not at risk. The reason for such exclusion shall not be on any prohibited grounds of discrimination.
This amendment attempted to reduce the possibility of broad exclusions, which otherwise might even extend to pregnant workers. The Worker members thought that not only consultation, but also the agreement of representative organizations of employers and workers was important in determining exclusions. These should be permitted for limited categories of work, rather than of enterprises. The problems of a substantial nature which gave rise to such exclusions should be unique, rather than special. Moreover, a non-discrimination element had been added to forbid exclusion on prohibited grounds of discrimination. While the principle of limited exclusions was acceptable, these must not be made on a discriminatory basis.
91. The Employer Vice-Chairperson requested clarification from the Office about whether eligibility requirements, which were an important element of virtually all social security legislation, would enter into questions of limitation under Point 6(2). The requirement for agreement with the workers' and employers' organizations could limit governments' ability to determine qualifying periods of service and other eligibility criteria. Member States should have the right to make such decisions after consultation with the social partners. She wondered whether "categories of workers" could apply to casual workers, temporary workers, or those who did not meet eligibility criteria, such as time in service or a minimum contributory period to an insurance scheme, for example.
92. A representative of the Secretary-General noted that Point 6(2) addressed exclusions from the scope of application and not qualifying conditions. The emphasis in the phrase "limited categories of workers" was the word "categories", which could cover temporary, casual or part-time workers. Women who did not meet eligibility requirements for benefits could not be considered a category of workers in the sense of that provision. A woman who had only worked for three months and did not meet the eligibility requirement of six months of time-in-service, for instance, came within the scope of application, even though she did not meet the eligibility requirements for entitlement to benefits.
93. The Employer Vice-Chairperson opposed the amendment. She found the requirement to make the exclusions only at the time of ratification to be too limited. The "agreement" of the social partners was not appropriate wording. Members should have the right to decide on exclusions after consultation with the social partners. Otherwise, the withholding of consent would be sufficient to block any exclusions from being made. The word "unique" also posed a problem since it implied something out of the ordinary. The introduction of the element of the health of the mother and child somewhat changed the focus of the provision, which concerned the exclusion of categories of workers, not of individuals. The last sentence was not required in light of the previous discussion on Point 5. Also, if the Worker members' intention was to preclude exclusions based on family status or pregnancy, the current wording was in contradiction with that aim. Language would have to be added to state that groups of pregnant women could not be excluded. The Worker Vice-Chairperson proposed as a subamendment that the following additional wording be added to the end of the sentence: "it being understood that pregnancy itself is not a prohibited ground of discrimination for the purposes of this Convention".
94. The Government member of Cyprus observed that this Point introduced some flexibility for governments to make exclusions, but cautioned that these exclusions should not be too wide; otherwise it would defeat the purpose of the Convention. Her Government was in favour of consultation and dialogue, but the requirement of "agreement" would be too difficult. The reference to discrimination complicated the text. With respect to Point 6(2), her Government preferred the Office text.
95. The Government member of Guinea stated that in his country through the functioning of the national consultative committee, "consulting with representative organizations of employers and workers" implied that agreement was always reached between the parties. Thus, the wording "consultation and agreement" seemed repetitive and should be omitted. He did not believe that the parties would conduct themselves in such bad faith as to wish harm to the health of the woman and child. Accordingly, the words "and provided that the health of the woman and child is not at risk" should be omitted. Without these two omissions, his country could not support the amendment.
96. The Worker Vice-Chairperson suggested that the word "agreement" could be replaced by the word "negotiation". However, there still seemed to be several elements at issue, and she was willing to address them one by one. She was concerned that "limited categories of worker" could include part-time workers, but understood from the Government interventions that they believed that some manner of limiting scope was necessary. In light of this, she agreed to withdraw the word "agreement".
97. Having listened to the concerns expressed by the members of the Committee, the Worker members sought to remove the problematic aspects by introducing a subamendment which resulted in the following text:
However, a Member might, in consultation with the representative organizations of employers and workers concerned, exclude wholly or partly from the scope of the Convention limited categories of workers or of enterprises when its application to them would raise special problems of a substantial nature.
98. The Employer Vice-Chairperson asked the Office to clarify the difference between the phrases "after consulting" and "in consultation with". The phrase "in consultation with" seemed acceptable when it referred to a process, but in this context it referred to decision-making. The question was whether governments would retain the right to reach an independent decision.
99. The representative of the Legal Adviser stated that, whichever term was chosen, consultations had to be carried out in good faith. The difference in terminology related to the extent or degree of discretion given to governments. There appeared to be somewhat less discretion implicit in the phrase "in consultation with". In both cases, however, the final decision rested with the government, since the wording of the text was "A Member might ... exclude".
100. As there was not sufficient support for the amendment, it was withdrawn.
101. The Government member of Australia submitted an amendment to insert after the words "However, a Member might" the following text: "at the time of ratification and at any time thereafter". He noted that member States might be reluctant to ratify an instrument in which a list of exclusions could not be reviewed periodically in accordance with changing circumstances, or they might delay ratification until a comprehensive list could be established. Similar views were expressed by the Government member of New Zealand. The Employer Vice-Chairperson supported the amendment as it addressed an issue which was also the subject of a later amendment of the Employer members. The provision would enhance the flexibility of the instrument and would not compromise the provision made for consulting employers' and workers' organizations. The amendment was opposed by the Worker Vice-Chairperson, who said that the Office text reflected the wording employed in other Conventions and that the issue was the improvement of maternity protection. The Government member of Cyprus said that the amendment changed the philosophy of the provision by extending the potential scope of exclusion, which would have social policy implications. Following further opposition from the Government Members of the Committee Member States of the European Union, the amendment was not carried.
102. The Government members of Australia, Canada and New Zealand submitted an amendment to delete after the words "from the scope of the Convention" the word "limited", and to insert after the word "enterprises" the words "determined in accordance with national law and practice". In presenting the proposal, the Government member of Canada said that the word "limited" was redundant, while the second part of the proposal was designed to ensure that Members were given sufficient flexibility in cases involving special problems. However, he emphasized that the intention was not to open up a wide gate to possible exclusions. The Employer Vice-Chairperson supported the amendment, which she said removed a redundancy in the Office text tantamount to a triplication of barriers. The amendment was opposed by the Worker Vice-Chairperson, who said that it ran counter to the intention of the mandate of the Committee, which was to seek ways to improve maternity protection. In particular, she was strongly against the deletion of the word "limited", which would restrict the scope of the instrument, and allow for the possible exclusion of workers in entire industries or complete categories of workers, such as homeworkers or part-time workers. The Employer Vice-Chairperson said that the deletion of "limited" would not prejudice the requirement of making exceptions subject to the existence of "special problems of a substantial nature", an argument also voiced by the Government member of Canada. Following opposition from the Government members of the Netherlands, Poland and Spain, the Government member of Canada proposed a subamendment to retain only the second part of the original amendment, the intention of which was to take account of local circumstances which might give rise to special problems of application. The subamendment was opposed by the Worker members on the grounds that it was self-evident that account would be taken of national law and practice. The Employer Vice-Chairperson said that although she agreed that this was indeed the case, the inclusion of such words was in no way superfluous and that it was necessary to make the point to ensure that matters were not determined by outside groups. The Worker Vice-Chairperson stressed that maternity protection was a necessity and not a luxury and that it was essential to avoid provisions that opened the way to broad exclusions. The Government member of the United Kingdom also opposed the subamendment, on the grounds that it was adequately addressed by the provision contained in Point 6(3) and the reporting procedures under article 22 of the Constitution. Following a lack of support from Government members, the amendment, as subamended, was withdrawn.
103. The Employer Vice-Chairperson submitted an amendment to delete the words "of a substantial nature", which raised the question of who would determine such a criterion and would compromise the flexibility required for the recognition of special circumstances. The Worker Vice-Chairperson said that it was for Members to decide on the interpretation of the words, which she believed should remain in the text. Following a lack of support from the Government members, the amendment was rejected.
New paragraph after Point 6(2)
104. The Employer Vice-Chairperson submitted an amendment to add a new paragraph after Point 6(2) to read as follows:
A Member might, after consulting the representative organizations of employers and workers concerned, exclude wholly or partly from the scope of the Convention workers who do not meet established eligibility criteria.
She said the intention of the proposal was to enable jurisdictions which prescribed a certain period of employment before entitlement to leave, or which placed a cap on earnings before social security type maternity benefits were provided, to be able to meet the requirements for ratification. Not all countries had European-style social security systems and it was important to avoid establishing a narrow perspective in the instrument. She added that the amendment was based on the Employer members foreseeing the possibility of the opinion given by the Office that eligibility criteria did not belong under Point 6(2), which permitted the exclusion of limited categories of workers. The Worker Vice-Chairperson opposed the amendment on the grounds that the text already contained a large measure of flexibility, and that the inclusion of such vaguely defined terms as "eligibility criteria" would compromise the provision of basic maternity protection. The provision established in Point 6(2) left open the possibility for any Member, after consulting the representative organizations of employers and workers, to make certain exclusions from coverage, and there was no need to go any further. The Government member of New Zealand supported the amendment, without which his Government would not be able to ratify the instrument. Similar views were expressed by the Government member of Australia, who said that maternity leave in his country was subject to an eligibility period of 12 months and that cash benefits were governed by a means test. The Government member of Kenya opposed the amendment, since it provided details that were unnecessary in the light of Point 6(2). The Government member of Cyprus, noting the provision of eligibility criteria in some jurisdictions, said that this matter was partially addressed by Point 9(4) as regards cash benefits. However, as regards leave, the effect of the amendment would be to exclude from such entitlement women who were unable to satisfy eligibility criteria under social security schemes. This would be unacceptable. The amendment was also opposed by the Government members of Poland and Spain, who said that there should be no further measures to extend exclusions. Following further opposition from Government members, the amendment was rejected.
105. Point 6(2) was adopted as amended.
Point 6(3)
106. In the light of the discussions, the Employer members withdrew their amendment to replace the words "preceding paragraph" with the words "two preceding paragraphs", replace the words "its first report" with the words "its reports", add after "exclusion" the words "and/or list the eligibility criteria that apply" and to delete the last sentence.
107. An amendment submitted by the Worker members to delete the words "workers or of enterprises" and replace with "work" was withdrawn.
108. In the light of the debate, the Government member of Australia withdrew his amendment to insert after "the Member should" the following text: "list any changes in the categories of workers or of enterprises excluded and the reasons for these changes, and".
109. Earlier discussion on Point 5 had resulted in agreement to establish linkage with Point 6(2) by adding the words "Notwithstanding the provisions of Point 5" at the beginning of Point 6(2).
110. Point 6(3) was adopted without change.
111. Point 6 was adopted as amended.
New Point after Point 6
112. The Government member of Croatia submitted an amendment to insert before the heading entitled "Leave", a new heading entitled "Health Protection", comprising two new Points as follows:
7(l) The employment of a woman on work defined by the competent authority as prejudicial to her health or that of her child shall be prohibited during pregnancy and, on the basis of a medical certificate, for as long after the childbirth as the woman is nursing her child.
7(2) Where the woman's work is the subject of a prohibition of employment during pregnancy and nursing, measures shall be taken, appropriate to national conditions, for the woman to be transferred to another kind of work or, if the transfer is not feasible, the woman shall be entitled to leave, without loss of wages.
The Employer Vice-Chairperson said that Point 22 of the Proposed Conclusions already addressed the subject of health protection and that in any case a Convention was not the proper place for such provisions. Furthermore, she strongly opposed the substance of the amendment as being so open-ended that its adoption might mean that employers could not afford to employ such workers at all. The Worker Vice-Chairperson said that the proposal had its merits, but that she would like to hear the views of the Government members. The Government members of Bulgaria and Italy supported the amendment. The Government members of France and Spain opposed the amendment since it would impose a prohibition on employment.
113. The Government member of Australia considered that the Committee had reached a point where a critical choice must be made between two possible models of an international standard. The first would be an instrument in which standards were established with regard to maternity protection in developed countries. The principal risk of such an approach would be the creation of an instrument relevant to a limited number of member States, a number of whom would in any case be unable to ratify the Convention due to its prescriptive detail. Less developed countries could not achieve such standards in the short or even medium term. Indeed, the standards might be so high as to discourage those members from further action in the area of maternity protection. Some improvement might be made with regard to women who already had protection, but the vast majority of women working without protection would be abandoned. The alternative to such an approach would be a more facilitative instrument which established minimum essential protection, but which left to the Recommendation the establishment of desirable higher standards. The Government of Australia supported the establishment of minimum essential protection. While agreeing with the thrust of the amendment under consideration, it could not support it for inclusion in the Convention.
114. The Government members of Cyprus, Poland and the United Kingdom agreed that the substance of the amendment would be more appropriately placed in the Recommendation.
115. The Worker Vice-Chairperson strongly urged inclusion of a provision on health protection in the Convention. Recognizing the problems raised by previous speakers, she proposed a subamendment, as follows: "No pregnant or nursing woman should be obliged to carry out tasks considered by the competent authority as dangerous to her health". Such wording followed the spirit of the European Union Council Directive 92/85/EEC on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding. It was flexible, in that it permitted the competent authority at the national level to determine which tasks were dangerous. Further details could be left to the Recommendation. The Government member of Croatia could accept such a subamendment if the words "carry out tasks" were replaced by "perform work" and the phrase "or that of her child" were added at the end.
116. The Employer Vice-Chairperson opposed the proposal, arguing that such wording was too open-ended. It implied that the competent authority would be required to rule on every type of work that could or could not be performed. In fact, the text of the EU Directive was not as broad as had been explained, since it referred to specific defined risks, such as ionizing radiation. A further negative aspect of the subamendment was that the consequences were unclear for the woman as regards the possible right to transfer or to leave.
117. The Government member of Cyprus, whilst still maintaining her previous position, proposed that the word "considered" be replaced by "defined".
118. The amendment as subamended thus read as follows:
No pregnant or nursing woman should be obliged to perform work defined by the competent authority as dangerous to her health and to that of her child.
It was defeated by a vote of 232,388 in favour and 236,652 opposed, with 8,528 abstentions.
Point 7
Point 7(1)
119. The Worker Vice-Chairperson introduced an amendment to add, after "medical certificate" the words "where this is feasible"; to add after "be entitled to a" the word "minimum"; and to replace "12" by "14". She explained that "where this is feasible" should be added to take into account a situation common to countries in several regions in which medical services were not always readily available.
120. The Employer Vice-Chairperson found the wording "where this is feasible" to be too broad. Employers needed to receive some form of certification regarding the expected date of confinement. The Employer members would propose an amendment which had a similar thrust to that now under consideration. However, they could not agree in principle with raising the minimum standard for leave from 12 to 14 weeks, as it would create an obstacle to ratification for many member States.
121. The Government member of Croatia supported the Worker members' proposal and suggested that the words "part of which shall, at the woman's request, be provided before the woman's presumed date of confinement" be added at the end. The Employer Vice-Chairperson objected since such wording had been submitted previously as an amendment and had subsequently been withdrawn for lack of support. This objection was shared by the Government members of Cyprus and the United Kingdom.
122. Regarding the question of a medical certificate, the Government members of Egypt and India could accept the wording "where it is feasible". The Government member of India stated that presentation of a medical certificate should not be a requirement for maternity protection. Protection should be provided simply because the woman was pregnant and her employer was aware of it. The Government member of Cyprus stated that the wording "where feasible" could prove problematic for governments. Some form of certification would be necessary. This view was echoed by the Government members of Australia, Belgium, Canada, Ethiopia, Japan, Luxembourg, New Zealand, Papua New Guinea and the United States. The Government members of Bahrain, Barbados, Colombia, the Libyan Arab Jamahiriya, Mexico, Oman, Qatar, Turkey, the United Arab Emirates and Venezuela preferred the establishment of a medical certificate.
123. The Government member of the Philippines sought clarification on the scientific and medical basis for setting the leave period.
124. The representative of the World Health Organization stated that there was no doubt that adequate rest and recuperation were needed following childbirth. Returning to work too early could result in acute health problems. Also, the post-partum period was essential for establishing exclusive breastfeeding, which was an essential contribution to the health of the child. Safe motherhood was a right for all women.
125. With regard to the period of leave, the Government members of Australia, Bahrain, Barbados, Colombia, Ethiopia, Guatemala, India, Kenya, the Libyan Arab Jamahiriya, Mexico, Namibia, Oman, Papua New Guinea, Qatar, Tunisia, Turkey, the United Arab Emirates and Zimbabwe preferred 12 weeks of leave. The Government members of Greece and Italy preferred 14 weeks of leave. The Government member of Greece said that the Committee should seek to set a higher standard with regard to leave in order to improve working conditions.
126. The Worker Vice-Chairperson did not insist on the inclusion of the words "where it is feasible". It was evident from the discussion that the Worker members' concern that a medical certificate should not be a condition of leave had been recognized. Nor was the word "minimum" necessary. However, the Worker members felt strongly that the duration of leave should be raised to at least 14 weeks. The Maternity Protection Convention, 1919 (No. 3), had already provided for six weeks before and six weeks after the birth, in effect providing 12 weeks total. The current revision should result in an improvement.
127. The Committee voted on the following text:
A woman to whom the Convention applies should, on production of a medical certificate stating the presumed date of her confinement, be entitled to a period of maternity leave of not less than 14 weeks, part of which shall, at the woman's request be provided before the presumed date of confinement.
The amendment was defeated by a vote of 211,068 in favour and 277,160 opposed, with 6,396 abstentions.
128. The Employer Vice-Chairperson introduced an amendment which proposed deleting the words "a medical certificate" and replacing them by the terms "appropriate certification as determined by national law and practice." This amendment was supported by the Government Members of the Committee Member States of the European Union, and the Government members of Australia, Canada, Japan, New Zealand and the United States. The Worker Vice-Chairperson introduced a subamendment to retain the term "a medical certificate" and to add the word "or" just before the Employer members' proposed text. The subamended proposal thus read "a medical certificate or appropriate certification as determined by national law and practice". The wording retained the idea of a medical certificate, but allowed other forms of certification where a medical certificate was not possible. The Employer Vice-Chairperson rejected the subamendment, considering the language more restrictive. The Government members of Australia, Croatia and Senegal supported the Worker members' subamendment. The Government members of Cyprus and the United Kingdom could accept either version of the amendment. After hearing the interventions of the Committee members, the Employer Vice-Chairperson accepted the Worker members' proposal, which was subsequently adopted by the Committee.
129. Point 7(1) was adopted as amended.
Points 7(2) and 7(3)
130. The Government members of Indonesia and Spain and the Employer members submitted separate amendments to delete Points 7(2) and 7(3). The Government member of Indonesia explained that the minimum standard was established in Point 7(1) and that there would be no possibility for member States to lower that standard. In light of this, Points 7(2) and 7(3) were unnecessary. The Government member of Spain saw no practical use for Points 7(2) and 7(3). The requirement of a declaration of the leave period provided and of further declarations each time the leave period was changed, in addition to the reports already required under article 19 of the ILO Constitution, would result in a large number of reports. If a Member ratified a Convention, its national laws must at least meet the standard set therein and the ratification should stipulate the duration of the period of leave, which in Spain was 16 weeks. The Employer Vice-Chairperson objected as well to the underlying expectation that the period of leave should be continually extended. This, along with the burdensome reporting requirements, would discourage member States from ratifying the Convention. The Government members of Australia, Colombia, Ethiopia, France, Mexico, New Zealand and the United States supported the amendments.
131. The Worker Vice-Chairperson pointed out that the prior discussion had shown that the time was not yet right for providing for 14 weeks of leave in the Convention. The 12-week minimum had been retained. In light of this, it was necessary to retain Points 7(2) and 7(3) of the Proposed Conclusions, which were promotional in character. She opposed the amendments. The Government members of Cyprus and the Philippines supported the Worker members' desire to retain the two Points. The Government member of Cyprus added that Points 7(2) and 7(3) sent a signal that efforts should be made to increase the leave period beyond the 12-week minimum. She drew the attention of the Committee to Point 13 and said that, if Points 7(2) and 7(3) were to be deleted, Point 13 should nonetheless be retained.
132. The Government member of France agreed that the periodic review under Point 13 would ensure that account were taken of the promotional aspect of the instrument. The Government member of Australia stated that the promotional aspect would be more appropriately included in the Recommendation. The Worker Vice-Chairperson said that although promotional provisions could be put in a Recommendation, it was precisely their incorporation into a Convention that would make it an innovative instrument. Furthermore, she said that there were differences between Points 7(2) and 7(3) and Point 13 as regards their promotional character. Following further opposition to the amendments from the Government members of Croatia, Guatemala, South Africa and Venezuela, the amendments were withdrawn by their sponsors.
133. Point 7(2) and Point 7(3) were adopted without change.
134. Point 7 was adopted as amended.
Point 8
Point 8(1)
135. The Employer Vice-Chairperson submitted an amendment to delete Point 8(l), which would require national legislation to establish a period of compulsory leave and raise problems concerning the payment of such periods and the choices available to women. The Worker Vice-Chairperson, opposing the amendment, said that the instrument was addressing the needs of the majority of women in the world, not those of the privileged few, and that the work of many women involved considerable physical effort, from which some protection could be provided by a period of compulsory leave. The Government member of Canada recognized that there were situations in which women might not have the power to assert the right to voluntary leave, but said that his country would have difficulties in ratifying an instrument with compulsory leave requirements which would conflict with national legislation regarding human rights. Similarly, the Government member of Australia said that, although it was not his intention to seek the deletion of compulsory leave from the text, the provision would pose an obstacle to ratification for certain countries, including his own. He considered that the provision should not apply for those countries that provided sufficient protection to allow a woman to choose, without coercion, whether to work or not during a period where she had an entitlement to maternity leave. Similar views were expressed by the Government member of Sweden. The Government member of Croatia opposed the amendment, as did the Government member of Guatemala, who said that compulsory leave was essential to the health protection of mother and child, although many working women did not realize its importance and were forced to give up their leave because of financial necessity. The Government members of China, France, Italy, the Netherlands and Venezuela also opposed the amendment on similar grounds. The Government member of the United Kingdom said that the subject under discussion was a good example of the balance which had to be reflected in the instrument. He supported the principle of compulsory leave, since pregnant women and nursing mothers needed peace of mind during the difficult period of pregnancy and confinement, but said that the duration of such leave was something which should not be confused with that principle. The Government member of Cyprus expressed similar views and noted the concept of maternity protection was not always well established in many societies, and therefore needed to be promoted. In the light of the discussion, the Employer members withdrew their amendment.
136. An amendment submitted by the Employer members to delete the first mention of the word "should" and replace it with the word "might" and to move the amended Point to the Recommendation was subamended by the sponsors, in light of the earlier discussion, to retain only the first part referring to the word "should". The prescriptive nature of the word "should" would make it impossible for some countries, including those with some of the highest standards of maternity protection, to ratify the Convention. The Worker members opposed the amendment, re-emphasizing that the provisions of the instrument were intended to provide protection for the majority of women, rather than the privileged few. The Government member of Brazil supported the amendment, as did the Government member of Botswana, who said that the word "might" left the door open to the possible inclusion of "should". The Government member of Colombia said that the legislation of her country established a period of compulsory leave and that she opposed the amendment. The Government member of Spain said that the Office text already provided sufficient flexibility, a view endorsed by several other Government members. Following opposition from the Worker members, the Employer Vice-Chairperson drew the Committee's attention to the fact that the word "should" in the Office text would become "shall" in the Convention and requested a formal vote.
137. The amendment, as subamended, was rejected by a vote of 44,967 in favour, 67,080 against, with 2,600 abstentions.
138. An amendment was submitted by the Government member of the Netherlands to delete the words "of compulsory leave, the duration and distribution of which" and replace by "in which the employer is prohibited from allowing the woman to work. The duration and distribution of this period". Following opposition from the Employer members and a lack of support from Government members, the amendment was withdrawn.
139. An amendment was submitted by the Government members of Greece and Italy to insert after the words "a period of compulsory leave" the words "before and after confinement". In opposing the amendment, the Employer Vice-Chairperson said that countries which ratified the instrument should have the ability to determine the matter themselves. The Worker Vice-Chairperson said that in light of the earlier debate she would like to hear the views of the Government members. The Government member of Croatia supported the amendment, as did the Government member of Austria, who said that it reflected her national legislation. The Government member of Cyprus said that, although this was also the case in her country, she preferred the Office text which was more flexible. The Government member of Guatemala said that it should be up to the woman worker herself to decide the distribution of leave between the pre- and postnatal periods. The Government of Mexico expressed a preference for the Office text, as did the Government members of Botswana, the Philippines and the United States. The Government member of Poland proposed a subamendment to place the words "before and after confinement" after the words "distribution of which", which was rejected by the Employer members. Following a statement by the Worker Vice-Chairperson that she would also be presenting an amendment on the same Point, the subamendment and the amendment were withdrawn.
140. The Worker Vice-Chairperson submitted an amendment to add after "of the health of mother and" the word "/or" and to add after "child." the sentence "In any case, the period of compulsory leave after confinement should not be less than six weeks." The addition of the word "/or" was intended to ensure that women were given protection even if the child died, while the importance of leave after confinement had already been emphasized in earlier discussions. Furthermore, the proposal did not involve any extension of the period of leave, but simply sought to allow proper recovery from pregnancy. The Employer members opposed the amendment. The word "and" was better because determining the duration and distribution of compulsory leave would be based upon the health of the mother and child as a unit, while the new sentence would restrict the flexibility of States to determine what was appropriate in their national context. She referred to page 50 of Report V(2) where a large majority of replies stated that the duration and distribution of compulsory leave should be matters left to individual countries. The Government member of Cyprus opposed the amendment since it would, by imposing a prescribed period, limit what could be decided in the consultations with the social partners. The Government member of Poland said that six weeks was a minimum level for postnatal leave, and that full recovery required eight weeks. The Government member of Norway said the provision would be an obstacle to ratification for all the Nordic countries and the Government members of Canada, Ireland and New Zealand said that they would encounter similar difficulties. Following further opposition from the Government members of China, Papua New Guinea and Venezuela, the Worker members proposed a subamendment to retain only the first part of their original amendment concerning the addition of the word "/or". The Government member of Japan asked the Office to confirm that the duration and distribution of compulsory leave as for maternity leave should be determined by each country for medical reasons of maternity protection. The representative of the Legal Adviser explained that Point 8(1) of the Office text was sufficiently flexible to allow a Member to determine the duration of compulsory leave with account being taken of medical reasons, etc. The Employer members opposed the subamendment on the grounds that the Office text established a natural linkage between mother and child. Put to a vote, the amendment, as subamended, was adopted by 67,080 votes in favour, 44,447 against, with 1,560 abstentions.
141. Point 8(1) was adopted as amended.
Point 8(2)
142. The Employer Vice-Chairperson introduced an amendment to delete Point 8(2). Additional leave should not be confused with maternity leave. Many responses to the Office questionnaire had specified that an absence from work due to illness, complications or risk of complications should be treated as sick leave or that it was so considered in their national legislation. A few replies to the Office questionnaire suggested that such leave be treated as additional maternity leave. The financial implications should not be overlooked. Sick leave and maternity leave were treated differently in an employment situation. With regard to sick leave, it was usual to involve some form of direct employer responsibility. In addition, this special form of sick leave might be considered a discriminatory benefit, since it would not be available to all other employees who became sick.
143. The Government members of Australia, Canada and the United States observed that similar reasoning had led them to propose deletion as well. The interaction of sick leave and maternity leave was problematic. Such a provision might be better placed in the Recommendation. The Government member of Switzerland stated that it was well known that risks could arise during pregnancy and childbirth, and that protection should be provided. In Switzerland this would, however, be considered as sick leave. She urged, therefore, that the matter not be included in the Convention.
144. The Worker Vice-Chairperson explained that Point 8(2) referred only to cases of illness, complications or risk of complications arising from pregnancy and confinement, not to any other type of illness which might occur. She sought Office clarification as to whether her interpretation was correct.
145. The Government member of Guatemala reminded the Committee that this was a question of human rights. Many mothers had experienced illness, complications and risks of complications that required medical care. Such situations had to be covered, whether they arose during pregnancy or following confinement. The question here did not concern common illness, which was understood to be covered by sick leave, but rather illness associated with pregnancy and childbirth. It was essential that such leave be included within maternity protection. She was joined by the Government members of France, the United Kingdom and Venezuela in supporting the Office text.
146. The Government member of Cyprus also opposed deletion of Point 8(2), because it was important for women to have this additional period of leave in the event of complications. The Office text did not refer to that additional leave as either maternity leave or sick leave. Additional leave could be of either type. She suggested that the Office text might have been clearer if it had used the word "period". If her interpretation of the Office text was correct, she would support it.
147. The Government member of Senegal wished for clarification from the Office with respect to the provisions in the current Convention.
148. The representative of the Legal Adviser explained that Point 8(2) of the proposed Office text referred to a narrow set of circumstances involving illness, complications or risk of complications arising out of pregnancy or confinement. The Office analysis had revealed that, in these types of circumstances, national law and practice varied in providing an extension of maternity leave, which was considered strictly as a lengthening of the maternity leave period, or in providing, more broadly, some type of additional leave. Additional leave might be treated under national provisions in a variety of ways, and might include leave regulated under provisions relating to sickness, disability, or other necessary absence from the workplace, or even special provisions in the context of maternity leave. Additional leave was thus a broader concept than extension of maternity leave, since it might include, but did not necessarily include, provisions for extension of maternity leave as such. Point 8(2) of the proposed Office text used the broader term "additional leave", rather than limiting the provision to extension of maternity leave. It thus would require the competent authority to provide for additional leave under the narrow set of circumstances referred to above, but at the same time would leave to the discretion of the authority exactly how such leave would be provided. The distinction between extension of maternity leave and additional leave was not borne out in the drafting of Convention No. 103. The Conference Committee discussions in 1952, which resulted in Articles 3(5) and 3(6) of that Convention, reflected a general consensus that any sickness arising out of pregnancy or the birthing process (confinement) should be considered as a "part of maternity leave". Point 8(2) was broader in that it did not prejudice the question of whether sick leave or some other type of leave would be provided.
149. The Government member of Croatia suggested that additional leave should be provided in the event of the sickness of the child.
150. The Employer members and the Government members of Australia, Canada and the United States withdrew their amendments to delete Point 8(2).
151. The Employer members submitted an amendment to delete the word "additional" and replace it with the word "sick" and to move the amended paragraph to the Recommendation. Nevertheless, in view of the fact that this was the first discussion and that a further year's investigation and consideration would follow, and also noting that there would subsequently be discussion on the types of benefits to be payable, the Employer members were prepared to withdraw that portion of their proposed amendment that would have moved the paragraph to the Recommendation. They would, however, initiate a discussion at the next session of the Conference on the question of whether provision for such leave should appear in a Convention or in a Recommendation. For present purposes, however, the Employer members proposed a debate on the substance of the provision.
152. The Employer Vice-Chairperson then indicated that the purpose of the proposed amendment could be gleaned from the Office report itself. It appeared that the majority of Governments considered that, in the circumstances addressed by the provision, the most appropriate form of leave to be granted was sick leave. The Proposed Conclusions, however, would appear to create a third category of leave, the precise nature and parameters of which were not sufficiently clear to appear in a Convention. In the ordinary course of things when a worker had a medical certificate attesting to illness, the most appropriate form of leave was sick leave, notwithstanding whether the worker in question might be an expectant or nursing mother.
153. The Worker Vice-Chairperson regretted that the Employer members could not accept the use of the word "additional" in the text. The Office had made clear that the use of the word "additional" was not intended to denote a different form of leave, but to take into account the fact that in the national law and practice of ILO member States different forms of leave were granted under the circumstances which the paragraph contemplated. In the Worker members' view, it was essential that the leave to be granted to women ill during or after pregnancy be in addition to their normal maternity leave entitlement.
154. The Government members of Austria, Belgium, Canada, Denmark, Finland, France, Germany, Italy, Luxembourg, the Netherlands, Norway, Spain, Sweden and the United Kingdom proposed a subamendment to replace the word "sick" with the words "maternity leave, sick leave or some other form of" and to add the phrase "the form and maximum duration of such leave to be determined by the competent authority". Possible questions of interpretation might arise from the inclusion of the term "additional leave" as to whether it was intended to create a new form of leave or whether it was a term intended to accommodate differing national circumstances. In this respect, however, page 62 of Report V(2) made it clear that the term was intended to cover different national practices and was therefore intended to be one of wide application. The proposed subamendment would allow sufficient flexibility, without the need for the word "additional". The description of the different types of leave would make clear that the leave contemplated by the provision was different from, and therefore in addition to, maternity leave.
155. The Employer Vice-Chairperson found the suggestion particularly useful as it addressed the concerns of the Employer members with regard to the words "additional leave", particularly in light of the discussion yet to come on Point 9(1). Such wording would leave to governments the right to determine the type and duration of leave which should be accorded in such circumstances. Nonetheless, it would be preferable to specify that it was "by national law and practice" that such a determination should be made. Clear laws were needed to avoid any confusion that might arise from the switching from one type of leave to another.
156. The Worker Vice-Chairperson proposed reinserting the word "additional" after the words "form of" in order to specify that such leave should be granted in addition to, rather than in replacement of, maternity leave. She also suggested that the determination of the form and duration of such additional leave should be made by the competent authority in consultation with the representative organizations of employers and workers. She noted that the Worker members would have been prepared to accept the Office text.
157. The Employer Vice-Chairperson rejected the reinsertion of the word "additional", which would defeat the purpose of clarifying the rather nebulous concept of "additional leave". Further, the Employer members could not accept the Worker members' proposal that there be an obligation to consult with workers' and employers' organizations concerning the form of leave which was appropriate. National law and practice were the most appropriate means to determine the form of leave to be granted. As it was not merely a question of the duration of the leave but of the form as well, this raised important questions with regard to both the type of benefits which would be appropriate, and the sources of funding for them. These matters should be determined by national law and practice.
158. The Government member of the United Kingdom stated that in his view this was a matter to be determined by national law and practice. The reference in the Office proposal to the "competent authority" would achieve that. As far as possible, changes in leave regulations should be made in partnership with representatives of both workers and employers. In order to advance the discussion, he proposed a sub-subamendment so that the last sentence of the proposed text would read as follows:
The form and maximum duration of such leave to be determined by the competent authority in accordance with national law and practice after consultation with the most representative organizations of workers and employers.
The Government member of the United Kingdom stated that, with all previous proposals incorporated, the text before the Committee would read as follows:
On the basis of a medical certificate, maternity leave, sick leave or some other form of additional leave should be provided before or after confinement in case of illness, complication or risk of complications arising out of pregnancy or confinement. The form and maximum duration of such leave to be determined by the competent authority in accordance with national law and practice and after consultation with the representative organizations of workers and employers.
159. The Employer Vice-Chairperson could not accept the inclusion of the word "additional".
160. The Worker Vice-Chairperson stressed that the principal concern of the Worker members was that the leave in question be in addition to the standard maternity leave entitlement.
161. The Government member of Cyprus noted that in the text before the Committee, which specified types of leave other than maternity leave, nothing would be added by inclusion of the word "additional". There was no need to address the form of the leave in the last sentence of the paragraph. However, if the form were to be addressed, then it would be appropriate to include a sentence which made clear who would determine, and by what means, the form of leave to be granted. Cyprus could accept a requirement that the matter be determined by the competent authority, but would have difficulty with a requirement to consult. In Cypriot law, for example, the type of leave granted in the situation contemplated was sick leave. The proposed provision could raise the question as to whether the authorities would be obliged to consult about whether or not to apply the existing provision for sick leave.
162. The Worker Vice-Chairperson reiterated that two problems remained. First, with regard to the word "additional", nothing would be lost by including that word to ensure that it was clearly understood that the leave referred to would be in addition to regular maternity leave. Second, if the question to be determined included the form of the leave to be granted, and not merely its maximum duration, then consultation with representative organizations of workers and employers would be appropriate. Accordingly, the Worker members preferred to retain only the first part of the amended text before the Committee, and then to follow on with the Office text.
163. The Government member of the Russian Federation asked whether it might not be simpler to include the word "extension", in light of the fact that in most cases, including that of Russian law and practice, maternity leave was extended in the cases of illness contemplated by the paragraph.
164. The Government member of Croatia preferred the Office text. She could accept the text proposed by the United Kingdom as sub-subamended, retaining the word "additional". She explained that the term "other forms of leave" did not indicate the linkage of the entitlement to illness arising from childbirth or confinement. Use of the word "additional" would show this. Moreover, the meaning of "other forms of leave" was very unclear. It might include annual leave or even unpaid leave, for example. In such an event, it could mean that cash and medical benefits might not be provided during that period. It was important, therefore, to retain the word "additional". She preferred to keep the last sentence of the Office text. The Government member of Hungary shared this view.
165. The Government member of the Syrian Arab Republic proposed the following changes to the Office text: the first sentence should read "Sickness leave should be granted before and after confinement in case of illness or complications." The phrase "or risk of complications" should be deleted because leave should only be given for real complications. In addition, the provision should be clear and precise, and therefore the words "maternity leave, sick leave or other form of" should not be used.
166. The Employer Vice-Chairperson agreed that the leave should be provided as sick leave. The word "additional" implied that the leave was additional maternity leave. The intervention of the Government member of Croatia made evident the linkage to Point 9(1). If the term "additional" remained and this leave were considered to be additional maternity leave, it would entail the provision of benefits due during maternity leave. Many countries, however, considered such leave as sick leave and provided benefits accordingly. If the words "additional leave" did not appear in Point 8(2), there would be no need for a further reference in Point 9(1). Each member State could then determine the type of leave to be granted and, hence, the benefit levels to be applied. The Employer members' intention was not to avoid recognition of the need to provide for such situations. They believed, however, that the form of the entitlement should be left to each country to determine. An amendment submitted by the Government of the United Kingdom to replace the word "confinement" with the words "maternity leave period" would be discussed subsequently. This amendment would help clarify the point that coverage for sickness that related to pregnancy or childbirth would be in addition to maternity leave. The text before the Committee, but without the word "additional", might be acceptable.
167. The Worker Vice-Chairperson restated the Worker members' preference for the Office text.
168. By a show of hands, the Committee rejected the text of the amendment as subamended by the Employer members, further subamended by the Government member of the United Kingdom, sub-subamended by the Employer members and sub-sub-subamended by the Worker members.
169. The following text of the amendment as subamended by the Employer members and further subamended by the Government member of the United Kingdom was discussed:
On the basis of a medical certificate, maternity leave, sick leave or some other form of leave should be provided before or after confinement in case of illness, complication or risk of complications arising out of pregnancy or confinement. The form and maximum duration of such leave to be determined by national law and practice.
170. The Employer Vice-Chairperson recalled that the Employer members had been willing to accept the portion of the text which included the reference to consultation. They were willing to agree to reinstate the latter portion of the language just rejected, if that would help bring a compromise. The reinstated text would read:
to be determined by the competent authority in accordance with national law and practice and after consultation with the representative organizations of employers and workers.
171. The Worker Vice-Chairperson, having listened to the various arguments and seeing the problems of the amendment and its various subamended forms, reiterated the Worker members' preference for the original Office text. She suggested that the Government members of the Committee might indicate their preference either for continuing discussions on the basis of the much amended text or for returning to the original Office text. Most Government members were in favour of returning to the original Office text.
172. The Employer Vice-Chairperson remarked that if it was the wish of the Governments that the Convention contain a provision on additional leave without any definition of that term, then she had serious doubts concerning the possibility of wide ratification of the Convention. She subsequently withdrew the amendment.
173. The Government member of Japan submitted an amendment to insert after the words "additional leave" the words "or other appropriate measures". The intention of the proposal was to provide options which would enhance flexibility, since additional leave was not the only possible arrangement. This view was endorsed by the Employer members. The Worker Vice-Chairperson, in the light of the earlier discussion, opposed the amendment, as did the Government members of Austria, Belgium, Denmark, Finland, France, Germany, Guatemala, Italy, Luxembourg, the Netherlands, Portugal, Spain, Sweden and the United Kingdom. The amendment was withdrawn by its sponsor.
174. The Government member of the United Kingdom submitted an amendment to delete the first occurrence of the word "confinement" and replace it with "the maternity leave period". This was supported by the Government members of Belgium, Canada, Finland, France, Italy, Luxembourg, the Netherlands, Norway, Spain, Sweden, Turkey and the United States. Although it was quite right to cover the contingencies set out in the Office text, he said that it was important to ensure that illness during the period of maternity leave should not result in the provision of additional maternity leave to compensate for that illness. The amendment was strongly supported by the Employer members, endorsed by the Worker Vice-Chairperson, and accepted by the Committee.
175. Point 8(2) was thus adopted, as amended.
New paragraph after Point 8(2)
176. The Government member of the Netherlands submitted an amendment to add a new paragraph after Point 8(2) as follows:
(3) The prenatal portion of leave should be extended by any period elapsing between the presumed date of confinement and the actual date of confinement, without any reduction in any compulsory portion of postnatal leave.
The Government members of Austria, Finland, Germany, Italy, Japan, Luxembourg, Norway, Sweden, Turkey and the United Kingdom supported the amendment. The amendment was identical to another submitted by the Worker members, who said that differences between the presumed and actual date of birth were a fact of life which needed to be taken into account in the instrument. The health of mother and child was at stake, and the requirement to furnish a medical certificate would help prevent misuse of the provision. The Employer Vice-Chairperson noted that, while the Employer members supported the principle of the amendment, it belonged where it was in the Office text, namely in the Recommendation. The Government member of Cyprus supported the amendment, as did the Government member of Croatia, who noted that the provision in her country of six months' postnatal leave eliminated any problems regarding presumed and actual date of confinement. The Government member of Spain rejected the amendment, since it might suppose the extension of the total duration of maternity leave. The amendment was subamended by the Employer members to add the following words at the end of the paragraph: "so long as the extension does not exceed the total number of weeks established by each country as maternity leave". In some countries there was a compulsory period of six weeks' leave before birth, which meant that a delay between the presumed date and actual birth could extend the leave beyond 12 weeks. The Employer Vice-Chairperson said that although some countries granted extensive periods of leave, the instrument was aimed at fixing minimum standards which should not exceed the possibilities of the majority of countries. The subamendment was opposed by the Worker members on the basis that it would effectively reduce the length of postnatal leave. Postnatal leave was necessary to ensure full recuperation after confinement. As the prenatal leave would have already been used, it would be impossible to shorten that period. The subamendment was opposed by the Government members of Botswana, Guatemala, Kenya, Lesotho, Namibia, South Africa and Zimbabwe. The Government member of Cyprus also opposed the subamendment and said that the Office text merely clarified and improved the wording of the text contained in Article 3(4) of Convention No. 103. The Government member of Barbados noted that legislation in her country provided for a minimum period of six weeks' leave after confinement in the interest of the mother's health and opposed any reduction in the provision of postnatal leave. After a lengthy debate, and following further opposition from Government members, the subamendment was rejected, and the amendments originally submitted were adopted.
177. The new Point 8(3) was adopted as proposed.
178. Point 8 was adopted as amended.
Point 9
Point 9(1)
179. The Employer Vice-Chairperson submitted an amendment to delete the words "Cash and medical" at the beginning of the sentence and to delete all the words after "maternity leave". Noting the explanation by a representative of the Secretary-General that eligibility criteria governing cash and medical benefits could be determined by national law and practice, she said that the reference to "cash and medical" benefits was unduly restrictive and did not take account of other benefits, such as tax relief which, although not a direct cash benefit, did benefit a woman worker absent from work on maternity leave. The Employer members wanted to see the widest possible protection for women without compromising the ability of countries to comply with the provision. The Worker Vice-Chairperson opposed the amendment, noting that Report V(2) stated that more than 120 countries already provided cash and medical benefits and maternity leave.
180. The Employer Vice-Chairperson offered a subamendment, which the Employer members hoped would be accepted. She proposed, instead of deleting the words "cash and medical", to delete and replace the words "cash and medical" with the words "cash, medical or other".
181. The Worker Vice-Chairperson affirmed that the provision should make clear that there were three types of benefits: cash, medical and other benefits. Thus, the Worker members were not able to accept the proposed formulation using the word "or" and suggested instead that the word "and" replace it.
182. The Government member of Cyprus remarked that the Employer members' subamendment helped to make the proposed instrument more flexible. Nevertheless, at present the proposed text referred to "cash" and "medical" benefits. If it were also to refer to "other" benefits, the Committee would need to discuss what other types of benefits might also be contemplated.
183. The Government member of Croatia enquired whether the Employer members could accept a further subamendment to replace the word "or" with the word "and".
184. The Employer Vice-Chairperson rejected the proposal. The insertion of the word "and" would considerably broaden the sense of the paragraph. The paragraph addressed two particular forms of benefit, and the insertion of the words "or other" would allow member States to provide other forms of benefits, as some presently did, in accordance with their own national law and practice. For example, in some countries women on maternity leave might have access to certain tax concessions, which were not cash benefits per se, but were a means to ensure that a woman could maintain herself and her child in proper conditions of health and at a suitable standard of living. The instrument should offer governments different means to meet their obligations.
185. The Employer Vice-Chairperson reiterated that the Employer members' concern in discussing this issue was to ensure the widest possible application of the final text. Theirs was a genuine search for the necessary balance to provide not only the widest possible protection for working mothers but also to produce an instrument which member States would subsequently be able to ratify. Unless this balance were achieved, there could be implications for the employment of women. While the Employer members considered that the word "benefits" in Point 9(1) was sufficient to cover all forms of benefits that might be applied under national law and practice, they were prepared to move to the formulation offered in their subamendment. They could not, however, contemplate accepting the word "and" as it would be too restrictive and inclusive.
186. The Worker Vice-Chairperson observed that the topic under discussion went to the very heart of the Convention and the protection it was intended to afford working women. In her view, the Committee should not retreat from the proposal offered in the Office text, by restricting it simply to the word "benefits". Both cash and medical benefits had been specifically provided for under Convention No. 103. It would send the wrong signal if, after more than 45 years of economic growth, the new instrument should provide less to the women concerned. The Worker Vice-Chairperson urged the members of the Committee to adopt a text that specifically provided at least for cash and medical benefits, as in Convention No. 103 and in the Office text.
187. The Employer Vice-Chairperson recalled that since 1952 there had only been 36 ratifications of Convention No. 103, out of 174 member States. The Convention was plainly too restrictive, prescriptive, inflexible and out of date. The Committee was not asked to carry forward into the new instrument all of the elements of the old instrument which had proven to be problematic. Recalling the mandate from the Governing Body in its decision to revise Convention No. 103, the Employer Vice-Chairperson emphasized that the Employer members' efforts had been directed toward achieving the adoption of conclusions which would lead subsequently to instruments that would protect women workers, but which would be ratifiable. The Employer Vice-Chairperson expressed the hope that all members of the Committee had the same, common objective.
188. The Government members of Austria, Belgium, Denmark, Finland, France, Germany, Italy, Luxembourg, the Netherlands, Portugal, Spain, Sweden and the United Kingdom opposed the deletion of "cash and medical".
189. The Government members of Colombia, Côte d'Ivoire, Egypt, Guatemala, Kenya, Morocco and Venezuela expressed support for the Office text. The Government member of Guatemala noted that it was clear from the Office report that a majority of countries considered this provision essential to ensure the well-being of the mother and the child. The Government member of Kenya observed that if the words "cash and medical" were deleted, this could leave the way open to the possible abusive use of general benefits. Noting the lack of support for the first portion of the proposed amendment as subamended, the Employer Vice-Chairperson withdrew it.
190. Turning to the second portion of the Employer members' amendment, which would delete all words after "maternity leave", the Employer Vice-Chairperson did not propose to repeat the arguments put forward with regard to Point 8(2). She did, however, recall that approximately 117 Governments provided sick leave, not maternity leave, in the circumstances of illness contemplated by that provision. In the Employer members' view, including within the same provision consideration both of benefits and of the type of leave to be provided would be confusing. Maternity leave of not less than 12 weeks had been defined in the Convention. Any benefits to be defined in the Convention should therefore relate to maternity leave. Benefits which might be provided for other types of leave should be dealt with in the Recommendation which addressed the issue of related types of leave. Ending the provision with the words "maternity leave" would provide greater clarity as to the nature of governments' obligations.
191. The Government member of Switzerland presented her proposal to delete all words after "maternity leave", noting that in Switzerland additional leave would be sick leave. She briefly explained the characteristics of the Swiss health insurance system based on daily benefits and concluded that Point 9(1) in its present wording might pose problems to her country of the kind which had prevented it from ratifying Convention No. 130.
192. Similar reasoning had led the Government members of Australia, Canada and the United States to put forward their proposal to delete all words after "maternity leave". Because the proposed text went beyond the scope of maternity leave as such, it could lead to difficulties with regard to ratification. Because payments were provided in diverse ways for additional leave as in Point 8(2), it would be more appropriate to deal with this matter in the Recommendation.
193. The Worker Vice-Chairperson observed that the concerns expressed by the Employer members and by the Government members of Australia and Switzerland were met by the fact that Point 9(1) specifically referred to national law and practice. Thus, it afforded the flexibility which was sought and, at the same time, the protection which was necessary. Women needed to have some kind of financial support. However, it would be left to member States to determine the exact type of benefits to be provided through their national law and practice. On this basis, the Worker members rejected the amendments and stated their preference for the Office text.
194. The Government member of Germany noted the reference in Point 9(1) to Point 8(2). She was accordingly satisfied with the provision as drafted in the Office text. The Government members of Austria, Belgium, Croatia, Denmark, Finland, France, Italy, Luxembourg, the Netherlands, Portugal, Spain, Sweden and the United Kingdom opposed the amendment. The Government members of Namibia and the Philippines stated their support for the Office text.
195. The Government member of Guatemala rejected the amendment. She reminded the Committee that the period of leave under discussion was not for general illness. Rather, it was intended to cover illnesses directly related to pregnancy or childbirth. If the woman was ill from an unrelated sickness, then some other scheme would cover her.
196. The Government member of Kenya stated that the additional leave provided in Point 8(2) would not be helpful if no cash or medical benefits were provided. Accordingly, she rejected the amendment, adding that the wording "in accordance with national laws and regulations or other means referred to in Point 14 below" gave countries sufficient flexibility.
197. The Government member of Canada remarked that the reference in Point 9(1) to national law and practice was concerned with how benefits would be provided, rather than whether they would be provided. The resulting text of a Convention would read "shall" rather than "should". Therefore, the concerns expressed regarding additional leave were still valid. Benefits would have to be provided and governments would be obliged to figure out how to do so.
198. The Government member of Cyprus recalled that in adopting Point 8(2), they had gone a step further than the present Convention by granting a right to extra leave. The question presently before the Committee was whether a woman should be entitled to benefits during this period. In her country, additional leave was provided in the form of sickness leave which she understood would be allowed under the terms of Point 8(2). Cyprus could accept the text as it was. However, she understood the concerns expressed by other countries that a further right to benefits might make the Convention less ratifiable.
199. The amendments, which would have deleted the words "or additional leave (as referred to in Point 8(2) above)" from Point 9(1), were rejected by a vote of 39,091 in favour and 56,823 against, with 1,612 abstentions.
200. The Worker Vice-Chairperson withdrew an amendment submitted by the Worker members to insert after "maternity leave" the word "and/."
201. Point 9(1) was thus adopted without change.
Point 9(2)
202. Noting the opposition to the deletion of "cash and medical benefits", the Employer Vice-Chairperson withdrew an amendment submitted by the Employer members to delete the word "cash" from the beginning of the paragraph.
203. The Worker Vice-Chairperson introduced an amendment which would replace "child" with "children" and replace "proper conditions of" by the word "full." She explained that the reference to "children" would take into account multiple births. The word "full" was introduced to emphasize the level of benefits intended.
204. The Employer Vice-Chairperson opposed the amendment. It would create wide liability for the maintenance of all the woman's children, not merely the newborn. She doubted that any government could provide benefits at a sufficient level to ensure "full" health. In her view, the text as originally drafted would cover multiple births. The phrase "proper conditions of health and with a suitable standard of living" gave countries the flexibility that they would need to adjust the level of benefits to their own social and economic circumstances.
205. The Government members of Belgium, Denmark, Finland, France, Luxembourg, Norway, Portugal, Sweden and the United Kingdom opposed the amendment, stating that the latter portion of it was too broad. The Government members of Cyprus and Mexico also opposed the amendment.
206. The Government member of the Netherlands asked the Office for clarification regarding the implications of the text with regard to a woman who worked for only a few hours a week. In the Netherlands, the level of benefits provided would not allow such a woman to maintain herself and her child in proper conditions of health and with a suitable standard of living. While on maternity leave, she would receive maternity benefits supplemented by social assistance which together would provide the level required for a suitable standard of living.
207. The representative of the Secretary-General responded that the particular question had arisen with regard to women who worked a reduced number of hours per week and for whom the level of cash benefits would be insufficient to meet the principle expressed in Point 9(2). Point 9(2) did not prejudice any eligibility criteria established under national law and practice as referred to in Point 9(1) or other means as referred to in Point 14. The level of cash benefits described in Point 9(3) would apply to all women who met the qualifying conditions. For example, a country might choose to establish criteria for eligibility for benefits based on level of contributions to social insurance, time in service or hours per week. Point 9(4) provided that where a woman did not meet the conditions to qualify for benefits under national law and regulations or under means referred to in Point 14, she should be entitled to adequate benefits out of social assistance funds, subject to the means test required for such assistance. In response to another query by the Government member of the Netherlands, who stated that her country had both cash benefits and social assistance and questioned whether the two different kinds of benefits would be allowed under Point 9(2), the representative of the Secretary-General replied affirmatively.
208. Due to the lack of support for the amendment, the Worker members chose to withdraw it.
209. The Government member of Colombia introduced an amendment which would delete the words "suitable standard of living" and replace them by "level of income consistent with that provided for in paragraph (3) below". She subsequently subamended her text to add the word "adequate" before the word "income". The Worker Vice-Chairperson rejected the proposal as subamended and suggested that this issue be discussed under Point 9(3). She expressed support for the Office text for Point 9(2). The Government member of Colombia agreed to withdraw her amendment.
210. The Government members of Australia, Canada, New Zealand and the United States proposed an amendment to insert after the words "should be" the words "provided in accordance with national law and practice". The Government member of Canada stressed that it was not a question of whether to provide benefits. The intention of the amendment was simply to ensure sensitivity to local conditions with regard to the level of benefits. To clarify that point, he proposed a possible subamendment to the effect that Point 9(2) would read as follows:
Cash benefits should be provided at a level in accordance with national law and practice which ensures that the woman can maintain herself and her child in proper conditions of health with a suitable standard of living.
211. The Employer Vice-Chairperson fully supported the amendment. It was appropriate to reinforce the point that a country had a right to decide on the level of benefits in accordance with national law and practice. It would raise serious concern if the level of benefits were to be imposed by some outside authority. This would lead to a Convention which would be very difficult to ratify.
212. The Government members of Ethiopia, India, Morocco, Rwanda, Turkey and Venezuela also supported the amendment.
213. The Worker Vice-Chairperson asked the Governments to consider whether the amendment was really necessary. Point 9(1) already stated that benefits would be provided in accordance with national law and practice. There was no need to repeat it in Point 9(2). The Convention should ensure that a woman could maintain a suitable standard of living for herself and her child. The term "suitable" clearly referred to the situation in the country concerned. Countries which were less developed would not be forced to provide benefits at the same level as highly developed countries. As worded, the amendment would allow countries not to pay any benefit at all, if that was in accordance with their national law and practice. She therefore rejected the amendment. The Government member of Cyprus also opposed the amendment.
214. When put to a vote, the proposal as subamended, was rejected with 44,330 votes in favour, 51,584 against, and 1,612 abstentions.
215. Point 9(2) was adopted without change.
Point 9(3)
216. The Employer Vice-Chairperson introduced an amendment to delete that Point, which was too restrictive. A provision had just been adopted to the effect that the level of cash benefits should be at a level which ensured that the woman could maintain herself and her child in proper conditions of health and with a suitable standard of living. There was no need to stipulate the amount of those benefits, which should be left to each member State to determine. In the light of Point 9(2), Point 9(3) was unnecessary.
217. The Government members of Australia, Canada, New Zealand and the United States had followed similar reasoning in proposing an identical amendment. Points 9(1) and 9(2) established suitable minimum standards. Point 9(3) was unduly prescriptive and failed to take into account the diverse ways in which countries provided benefits.
218. The Worker Vice-Chairperson remarked that the preceding discussions on Points 9(1) and 9(2) had made even more evident the need for Point 9(3), which defined the level of benefits to be provided. The Worker members would have preferred to delete the reference to a flat rate under (b), but had recognized that it provided flexibility. It defined the level of benefits, but in a flexible manner which would meet the needs of countries at various levels of development.
219. The Government members of Barbados, China, Colombia, Croatia, Cyprus, Egypt, Germany, Greece, Hungary, Italy, Lebanon, the Libyan Arab Jamahiriya, Mexico, Senegal, Spain, the Syrian Arab Republic, Trinidad and Tobago and the United Kingdom expressed support for the Office text. The Government member of Senegal stressed that a substantial provision must be included for the maintenance of employed women. Compulsory leave could not be mandated if benefits were not provided. The Government member of Cyprus considered the provision an improvement over Article 4(6) of Convention No. 103 as it did not contain qualifying conditions.
220. In light of the discussion, the Employer members and the Government members of Australia, Canada, New Zealand and the United States withdrew their respective amendments.
221. The Government member of Japan introduced an amendment to replace Point 9(3) with the following text:
Cash benefits should be provided in accordance with the country's actual situation by either:
(a) a rate related to the woman's previous earnings or of such of those earnings as are taken into account for the purpose of computing benefits; or
(b) by means of a flat rate benefit of an appropriate amount;
or by the combination of both.
222. The speaker explained that the provision of benefits at a rate of not less than two-thirds of the earnings as provided in Point 9(3) did not take sufficient account of diverse national circumstances. The proposed amendment was a flexibility mechanism to enable wide ratification. In his view, no specific figures should appear in the Convention. The general principle contained in Point 9(2) would ensure an adequate level of benefits.
223. The Worker Vice-Chairperson preferred the Office text, which already provided sufficiently flexible alternatives. In the proposed amendment, the words "related to" could be interpreted as to imply that benefits might be provided at a very low percentage of a woman's earnings. Minimum standards must be expressed as clearly as possible.
224. The Employer Vice-Chairperson fully supported the amendment, assuming that no government would fail to take seriously their obligations under Points 9(1) and 9(2). Governments could be trusted to act in good faith and to the utmost of their ability to provide adequate benefits based on their knowledge of the actual situation.
225. The Government member of the Netherlands subamended the proposal to add at the end the sentence "The cash benefit should not in any case be less than the cash benefit paid in case of sickness or unemployment.", which she said would provide a floor for benefits. The Employer Vice-Chairperson opposed the subamendment, on the grounds that it would impose a prescription and assumed that all countries had applicable sickness or unemployment benefit schemes. The Government members of Croatia, Finland, Norway and Sweden also opposed the subamendment. The Government member of Canada said that he believed the question of flexibility was of critical importance and for that reason preferred to establish the principle without specific prescription but was prepared to support the subamendment if there was a preference of the Committee to have some floor. He noted that the Office text provided some flexibility for the countries using a flat rate and suggested that similar flexibility was needed for countries using a percentage of earnings. The Worker Vice-Chairperson, emphasizing that her preference went to the Office text, proposed a further subamendment for (a) to read: "a rate related to, but not less than two-thirds of the woman's previous earnings or of such of those earnings as are taken into account for the purpose of computing benefits; or". Given the relatively low level of women's earnings, she said that the reference to two-thirds of previous earnings could not be considered a luxury, and would not in any case exclude possible alternative methods. The Employer members opposed the subamendment and, following lack of support from Government members, both subamendments were rejected. Put to the vote, the original amendment submitted by the Government member of Japan was rejected by 43,524 votes in favour, 50,778 votes against, with 2,015 abstentions.
226. The Government members of Denmark, Finland, Norway and Sweden submitted an amendment to insert after the words "computing benefits" the words ", with the possibility of establishing a ceiling". The Government member of Denmark, in presenting the amendment, said that the Nordic countries could not ratify an instrument which precluded such a ceiling. The Employer Vice-Chairperson said that although she applauded countries which were able to provide benefits without a ceiling, many others were not and the instrument should be flexible enough to address the realities of those countries. The Government member of the United Kingdom said that, according to page 87 of Report V(2), it seemed that Point 9(3) in the Office text could in fact permit a combination within a country of both an earnings-based system and a flat rate system, which would enable that country to include a ceiling. He therefore believed that the concern expressed by the sponsors of the amendment could be adequately addressed by the original text, and asked for clarification from the secretariat. Following confirmation by the representative of the Legal Adviser that this interpretation was correct, namely that Point 9(3) as drafted by the Office could permit a combination of both an earnings-based and a flat rate system, the sponsors withdrew their amendment and requested that the clarification be noted in the record.
227. The Worker Vice-Chairperson submitted an amendment to add at the end of the paragraph the following words: ", such amount being sufficient to meet the requirements of 9(2) above.", which she said did not impose any new burden and merely sought to tie the two paragraphs together. The Employer members opposed the amendment, as did the Government members of Cyprus and the United States, who said that it was superfluous and made ratification more difficult. Following lack of support from Government members, the Worker Vice-Chairperson withdrew her amendment.
228. The Government member of the United Kingdom submitted an amendment to insert at the end of the paragraph a new sentence as follows:
The level of cash benefit received should be no less than that which would be received in the case of sickness.
This was intended to place a floor on the appropriate amount. In some countries two-thirds of a woman's previous earnings might not be an appropriate amount and, furthermore, Point 10 already made reference to sickness benefit as a yardstick. He believed it was important to identify the need for such a floor, although it might be provided by means other than reference to sickness. The amendment was opposed by the Employer members, who said it might be appropriate for a country with a well-established health system, but that the situation varied from country to country, with employers in some cases paying 100 per cent of the wages for periods of sick leave. The amendment was endorsed by the Worker Vice-Chairperson in the light of the earlier debate, as well as by the Government member of the Netherlands, who said that a similar floor was set in European Union Council Directive 92/85/EEC. Following a lack of support from Government members, the Government member of the United Kingdom withdrew the amendment.
229. Point 9(3) was adopted without change.
Point 9(4)
230. The Employer Vice-Chairperson submitted an amendment to delete the paragraph, since she believed that it was not particular to maternity protection. The Worker members opposed the amendment and said that the original text provided an essential safety net. Following lack of support from a large number of Government members, the amendment was withdrawn.
231. The Government member of Morocco submitted an amendment to delete the words "subject to the means test required for such assistance" and replace them by "to the extent that such assistance exists". The intention of the amendment was to take account of the ratification difficulties of countries whose social insurance provisions did not cover maternity. If ratification were placed within reach of countries, they would be encouraged to seek ways to achieve it. The Worker members opposed the amendment, stating that the assistance provided in the Office text was essential to help such women in many countries from falling into poverty. The Employer members, in stating that the proposal addressed some of their own concerns, proposed a compromise formula whereby the words "subject to the means test required for such assistance" would be retained, but followed immediately by the words "to the extent that such assistance exists". The subamendment was opposed by the Worker Vice-Chairperson, who said that it would leave a large hole in the proposed instrument. The Government members of Botswana and the United States supported the subamendment, which they said would enhance flexibility. The subamendment was opposed by the Government members of Colombia and Cyprus, who said that it would send the wrong signal concerning the importance of social assistance and the need to encourage it as a safety net measure. Following further opposition from the Government members of Guatemala, Hungary, Italy and Spain, the Government member of Morocco withdrew the amendment.
232. The Worker members had submitted an amendment to add a new sentence at the end of the paragraph as follows: "The cash benefits should not in any case be at a rate lower than cash benefits in case of sickness or unemployment", which was withdrawn in the light of the discussion.
233. Point 9(4) was adopted without change.
New paragraph after Point 9(4)
234. The Worker Vice-Chairperson submitted an amendment to add a new paragraph which read as follows:
A Member should ensure that the conditions to qualify for cash benefits are such that they do not result in excluding an unduly large percentage of women to whom this Convention applies.
The purpose of the amendment was to ensure that the largest number of women could take advantage of the maternity benefits available.
235. The Employer Vice-Chairperson could not support the amendment. She questioned the definition of "an unduly large percentage of women". She affirmed her conviction that governments acting in good faith would try to include as many women as possible.
236. The Government members of Australia, Austria, Belgium, Canada, Croatia, Denmark, Finland, France, Germany, Greece, Italy, Japan, Malta, the Netherlands, New Zealand, Norway, Portugal, Spain, Sweden, Switzerland, the United Kingdom and the United States supported the amendment. Its approach was appropriate and its form provided flexibility and guidance suitable to minimum standards.
237. New Point 9(5) was thus adopted.
Point 9(5)
238. The Employer Vice-Chairperson submitted an amendment to add the words "in accordance with national law and practice" to the beginning of the sentence and then to move the amended paragraph to the Recommendation. She then withdrew the second part of the amendment, based upon the interventions she had heard relating to Point 9. Medical benefits must be set by national law and practice and not imposed from outside. This qualification was important to clarify member States' obligations under the Convention.
239. The Government member of Morocco supported the amendment.
240. The Worker Vice-Chairperson did not support the amendment. It was unnecessary in light of Point 14. She voiced her support for the Office text.
241. The Government members of Austria, Belgium, Canada, Croatia, Denmark, Finland, France, Germany, Greece, Ireland, Italy, Kenya, Malta, the Netherlands, Norway, Portugal, Spain, Switzerland and the United Kingdom did not support the amendment.
242. The Government member of Japan asked the Office to confirm that Point 9(5) of the Proposed Conclusions did not mean that medical benefits were to be provided free of charge. The representative of the Secretary-General stated that the provision left that issue to national law and practice to decide.
243. The Government member of Botswana asked whether the Office's intention was that Point 9(1), which referred to national law and practice, should be read together with Point 9(5) of the Proposed Conclusions. The representative of the Secretary-General confirmed that interpretation.
244. The Employer Vice-Chairperson withdrew the amendment, adding that the issue could be revisited in the coming year's discussion.
245. The Worker Vice-Chairperson introduced an amendment to insert after the words "postnatal care", the words "from suitably trained and qualified staff". The proposal related to prenatal, confinement and postnatal care. The Worker Vice-Chairperson evoked the high maternal and infant mortality rates in certain developing countries due to the lack of qualified care. Article 4(3) of Convention No. 103 contained a provision which required that medical care be provided by "qualified midwives or medical practitioners". The proposed amendment would give much greater flexibility than that provision. It also had a promotional character, encouraging countries to provide suitable training for health-care workers. The Government members of Croatia and Guatemala also supported the amendment.
246. The Employer Vice-Chairperson stated that in a huge number of developing countries postnatal care was provided by women with vast experience, but no formal qualifications. This amendment would impose a mandatory requirement with regard to suitably trained and qualified staff and would thus be a restriction on governments. The Employer members did not support the amendment.
247. The Government members of Botswana, Cyprus, India, Kenya, Morocco, New Zealand, Papua New Guinea and Venezuela also preferred the Office text.
248. The Government member of Cyprus wanted to have clarification as to whether the intention of the Office was to diminish the standards of medical care required in Convention No. 103. The representative of the Secretary-General confirmed that the Office's intention was not to lower the standard of care, but to provide greater flexibility. The Office had removed certain restrictions, such as the freedom of choice of doctor and hospital.
249. The Worker Vice-Chairperson offered two subamendments: one to replace the word "and" with "and/or" and the other to add the words "in accordance with national law and practice" after "staff".
250. The Government member of New Zealand saw little value in adding "in accordance with national law and practice" to this provision, since this Point would refer back to Point 9(1) in which that was already specified and asked for clarification from the Legal Adviser.
251. The representative of the Legal Adviser explained that the phrase "in accordance with national laws and regulations" in Point 9(1) qualified cash and medical benefits throughout Point 9. An additional reference in only one paragraph might imply its non-application in other paragraphs.
252. The Worker Vice-Chairperson thereafter withdrew the subamendment referring to national law and practice. In light of the lack of support, she agreed to withdraw the amendment.
253. The Government member of Morocco submitted an amendment to insert the words "in accordance with national law and practice" after the word "include". In view of the previous discussion, she agreed to withdraw the amendment.
254. Point 9(5) was adopted.
New paragraph after Point 9(5)
255. A new Point 9(6) was proposed by the Employer Vice-Chairperson who introduced an amendment to add a new paragraph to read as follows:
In order to protect the position of women in the labour market, an employer shall not be individually liable for the direct cost of any monetary maternity benefit to a woman employed by him or her without that employer's specific agreement.
This was a particularly important issue not only for employers, but also for women of childbearing age who wished to enter the labour market. The amendment was intended to ensure that employers would not be individually liable for the direct payment of maternity benefits. Collective or other agreements by employers to bear liability for such costs would be a matter for them to decide. However, a high level of payments should not be shifted from governments to employers, as this could only detrimentally affect women's labour market participation. It was important to strive for an appropriate balance of incentives. If that balance were not achieved, employers could find it too expensive to employ women. Employers were prepared to continue to make their contributions to the cost of providing maternity benefits, whether through payroll tax or social security contributions or such other means as may be used in member States. However, if protection from individual liability were not provided to employers in the new Convention, the result could be the creation of barriers to women's employment.
256. The Government member of Poland observed that the amendment would lead not to protection, but to discrimination. The requirement for specific employer agreement with regard to the payment of benefits was inappropriate and could ostensibly lead to the requirement of employer agreement to other employment rights. She therefore could not support the amendment.
257. The Government member of Cyprus remarked that the question of how benefits were to be financed would be dealt with in Point 18 of the Proposed Conclusions leading to a Recommendation.
258. The Employer Vice-Chairperson noted that the wording of the amendment was practically identical to Article 4(8) of Convention No. 103. The Employer members eschewed any notion that they sought or desired a discriminatory result. Protection for women would be significantly reduced, in their view, if employers were left individually liable for the cost of benefits because they would, quite simply, choose not to employ women. The Employer members were not saying that they had no responsibility. On the contrary, they were prepared to recognize that all parties in the equation had rights and responsibilities. However, it could not be ignored that the imposition of direct costs on employers would only upset the balance being sought. This was a matter of such fundamental importance to them that subsequent support for a Convention from employers could hinge on it.
259. The Worker Vice-Chairperson observed that Article 4(8) of Convention No. 103 had been a significant obstacle to ratification. Thus, it would be counter-productive to the Employer members' expressed objective of a ratifiable instrument to include a provision of this nature in the new instrument.
260. The Government member of Germany noted that Article 4(8) had been an important reason why Germany had not been able to ratify Convention No. 103. Germany regarded the Office text as balanced. The Government members of Austria, Belgium, Denmark, Finland, France, Greece, Ireland, Italy, the Netherlands, Portugal, Spain, Sweden and the United Kingdom also opposed the amendment.
261. The Employer Vice-Chairperson called for a vote on the amendment.
262. A vote was conducted, and the amendment was defeated with 36,270 in favour, 56,420 opposed, and 2,015 abstentions.
263. Point 9 was adopted as amended.
New Points after Point 9
264. The Government member of Colombia proposed an amendment to insert Points 23 and 24 between Points 9 and 10. Points 23 and 24 dealt with provisions for nursing mothers. They should be brought forward to the Convention, as leaving them in a non-binding Recommendation would be a regressive step.
265. The Worker Vice-Chairperson expressed the concern of the Worker members that nursing breaks were not provided in the Convention. At least a minimum of protection should be included there.
266. The Employer Vice-Chairperson opposed the amendment. The drafting of Points 23 and 24 was not appropriate in a Convention in terms of the form, the topic and the obligations which would thus be imposed. In view of the nature of the amendment before the Committee, it was not appropriate to consider the substance of those paragraphs to which, in due course, the Employer members would be submitting amendments. The Employer members wished to stress that they were not in any way opposed to protection for nursing workers. It was simply important that a balance be struck in the instruments between prescription and regulation, and the promotion of labour market participation.
267. The Government member of Guatemala considered that maternity could be divided into three phases: pregnancy, delivery and nursing. In view of the indivisibility of these phases of maternity, it would not be appropriate for a Convention to exclude all consideration of nursing. Neither did it appear that it would be a controversial question from the point of view of ratification, since many countries had supported the provisions contained in Points 23 and 24. The Committee members should support the amendment in order to ensure the completeness of the new Convention. The Government members of China, the Libyan Arab Jamahiriya, Mexico and Senegal also expressed support for the amendment.
268. The Government member of Australia observed that the question was principally whether Points 23 and 24 should be moved without any change to the Proposed Conclusions with a view to a Convention. On that basis, the Government of Australia could not support the proposed amendment. The Government member of Cyprus also opposed the amendment on the basis that the transfer of Point 24 to the Convention would impose too great an obligation on member States.
269. The Employer Vice-Chairperson moved to defer discussion of the amendment until possible amendments to Points 23 and 24 in the Recommendation, which concerned nursing, had been submitted to the secretariat. She said that this would enable a full and proper discussion to be held on the substance, without foreclosing any options concerning the placement -- whether in the Convention or the Recommendation -- of any provisions adopted. After a lengthy debate, the Committee agreed to defer discussion of the amendment until after Point 14.
Point 10
Point 10(1)
270. The Worker Vice-Chairperson submitted an amendment to delete the paragraph and replace it with:
The cash and medical benefits should be provided through compulsory social insurance, public funds, sectoral funds, or in a manner determined by national law and practice.
The purpose of the amendment was to establish a basic principle to regulate the financing of benefits, given the many exceptions already established. The Employer members opposed the amendment since the Office text took account of countries that had economies and social security schemes that were less well developed, and provided the flexibility for countries to take steps towards providing full protection. The Government member of Cyprus also opposed the amendment, which addressed financing and which would be addressed in the Recommendation. The Office text would also allow some countries a necessary breathing time. Following further opposition from the Government members of Hungary and Papua New Guinea, the Worker members withdrew their amendment.
271. The Government member of the United Kingdom submitted an amendment to delete the words "whose economy and social security system are insufficiently developed". He said that Conventions were intended to set minimum standards, while this paragraph established selective criteria and dual standards, with separate minimum standards for certain countries, implying that developed systems should be subject to higher standards. The amendment was strongly supported by the Employer Vice-Chairperson, who said that the original wording was both loose and judgemental. The Worker Vice-Chairperson said she had several difficulties with the amendment, since Point 9(3) already provided for various levels of funding and that the amendment would change the meaning of the provision. The Government member of the United Kingdom, while reiterating his concern about who was to determine whether or not an economy or social security system was developed, said the matter could be revisited during the second discussion and withdrew his amendment.
272. An amendment submitted by the Government members of Australia, Canada, New Zealand and the United States to insert the words "9(2) and" before the words "9(3)", move the word "are" from just before "provided" to just after "provided" and to delete "at a rate" was withdrawn.
273. An amendment submitted by the Employer members to delete the words "Point 9(3) above" and replace by the words "this Convention" was withdrawn in the light of the discussion.
274. Point 10(1) was adopted.
Point 10(2)
275. An amendment was submitted by the Worker members to delete Point 10(2) and replace it with:
Any contribution due under a compulsory social insurance scheme providing maternity benefits and any tax based upon payroll which is raised for the purpose of providing such benefits -- whether paid both by the employer and the employees or by the employer -- should be paid in respect of the total number of men and women employed, and in accordance with national law and practice.
It was subsequently withdrawn.
276. An amendment was submitted by the Employer members to delete the word "this" and replace it with the words "the preceding", to delete the word "first" and to add "s" to the word "report" and then to delete the last sentence. In presenting the amendment, the Employer Vice-Chairperson said the original wording indicated an expectation of ongoing improvements, but that she would like to hear the views of Government members before considering withdrawing her amendment. The Worker Vice-Chairperson opposed the amendment, which she said would detract from flexibility. Following opposition from the Government members of Cyprus and Hungary, who said that the original wording was customary in other ILO instruments, the Employer members withdrew their amendment.
277. Point 10(2) was adopted without change.
278. Point 10 was adopted.
Point 11
279. With regard to Point 11, an amendment was submitted by the Employer members to delete the Point and replace it with:
A Member should take the necessary measures to prohibit the dismissal of a woman during the period from the beginning of the pregnancy until the end of the maternity leave except on grounds unrelated to pregnancy or childbirth.
In presenting the proposal, the Employer Vice-Chairperson said that it addressed various concerns, including that of bringing the terminology into line with European Union Council Directive 92/85/EEC and a ruling of the European Court of Justice concerning discriminatory treatment against men. The reference to "consequences" in the Office text was too broad, while the use of the word "nursing" in this context went too far. Women needed to be protected during the period between the beginning of their pregnancy and the end of their maternity leave, but employers also needed to know the extent of their obligations. The Worker Vice-Chairperson said that the amendment substantially weakened the text and did not provide adequate protection against dismissal. The Government member of the Libyan Arab Jamahiriya opposed the amendment and expressed preference for the Office text. Following further opposition from the Government members of China, Colombia, Cyprus, Guatemala and the Philippines, the Employer members withdrew their amendment.
280. The Government member of Spain submitted an amendment to delete the Point and replace by the following:
It should be unlawful for an employer to terminate the employment of a woman during her pregnancy, during her maternity leave, or during the time she is nursing except on grounds unrelated to the pregnancy or childbirth, in accordance with national law and practice.
She said that it was not clear from the Office text whether the period of protection coincided with the nursing period or otherwise and she wondered whether the mother would still be protected from termination if the child should die. The Worker Vice-Chairperson opposed the amendment on the grounds that it did not provide protection as regards additional leave periods and did not include nursing in the final part of the text. The Employer Vice-Chairperson also opposed the amendment and said that the words "during the time she is nursing" were too broad for a Convention, although they might be commendable in national legislation. Following lack of support from the two groups, the Government member of Spain withdrew her amendment.
281. The Government member of France submitted an amendment, which he subamended, to delete the Point and replace by the following:
It should be unlawful for an employer to terminate the employment of a woman throughout the duration of her pregnancy and maternity leave, except on grounds unrelated to her pregnancy or confinement, in accordance with national law and practice.
He believed that the Office text strayed too far from a minimal framework and that his proposal might pave the way for a consensus. The subamendment was endorsed by the Employer Vice-Chairperson as particularly suited to the language of a Convention. The Worker Vice-Chairperson opposed the subamendment on the grounds that it did not provide protection against dismissal during the period of nursing and additional leave.
282. The Government members of Australia, Belgium, Denmark, Finland, France, Germany, Greece, Ireland, Japan, Luxembourg, New Zealand, Norway, Portugal, Spain, Sweden, the United Kingdom and the United States supported the amendment as subamended by the Government member of France. The Employer members expressed support as well.
283. The Government members of Bahrain, Botswana, Jordan, Kenya, the Libyan Arab Jamahiriya, Namibia, Sudan, the United Arab Emirates and Zimbabwe opposed the proposal, since it did not include provisions for additional leave and the nursing period. The Government member of Cyprus stated that the provision should cover additional leave since the right to such leave was established under Point 8(2), but not the nursing period. The Government members of Colombia, the Dominican Republic, Egypt, Guatemala, Mexico and the Russian Federation preferred the Office text. The Government member of Guatemala stated that the Convention would set an example for national legislation for years to come. It should cover all three stages of maternity -- pregnancy, delivery and the nursing period. While there was no need for excessive periods of protection, those three stages should be covered.
284. Put to a vote, the amendment as subamended was defeated by 20,832 in favour, 23,622 opposed, and 372 abstentions.
285. The Employer Vice-Chairperson withdrew an amendment to insert "or" between "who is pregnant" and "absent"; to delete the words "or additional ... regulations"; and to delete the words "and its consequences or nursing".
286. The Government member of Denmark proposed an amendment to delete the words "or additional leave (as referred to in Point 8(2) above),". To extend protection from dismissal to cover the period of "additional leave" was problematic, since the term was so broad as to be unclear.
287. The Employer Vice-Chairperson supported the amendment. Protection from dismissal should be limited to pregnancy and maternity leave. Protection for an additional period of leave, the duration of which was unknown and possibly long, posed a problem for employers. She referred to the ruling of the European Court of Justice mentioned earlier under Point 11, which had held that protection against dismissal after pregnancy and maternity leave could be considered discriminatory against men. If this were so, Point 11 might prove problematic for some European countries to accept. In light of the previous discussions within the Committee concerning the concept and definition of additional leave, and the obligations to which member States would be subject if such a term were ultimately used in a Convention, in the Employer members' view, the type of protection proposed in Point 11 would be better provided under national law and practice. Member States which provided additional leave should determine in their national law and practice what extra protection might be appropriate.
288. The Government member of Guatemala reminded the Committee that the additional leave mentioned in Point 8(2) referred solely to additional leave for women whose illnesses were linked to pregnancy or confinement. In such circumstances, women would already be protected from termination of employment on the grounds of pregnancy or childbirth and its consequences.
289. The Government member of Cyprus recalled her support for protection against dismissal during additional leave. Lengthy discussion had clarified the Committee's understanding of what was meant by that term. For the sake of consistency, the Committee should now retain the reference to "additional leave" in the Office text. The Government members of Bahrain, Botswana, Egypt, Jordan, Kuwait, the Libyan Arab Jamahiriya, Namibia, Saudi Arabia, South Africa, Sudan, the United Arab Emirates and Zimbabwe also opposed the amendment.
290. The Worker Vice-Chairperson observed that 103 governments had responded favourably to the Office text, which contained a reference to additional leave. She did not see, therefore, any particular obstacle to ratification if the text were adopted. The Committee had already adopted Points referring to additional leave and to the benefits payable during that period. It was only logical to provide protection against dismissal during the period as well.
291. The amendment was withdrawn.
292. The Government members of Denmark, Finland, Norway and Sweden introduced an amendment to delete the words "and during a period following her return to work, to be prescribed by national laws and regulations,". The words "following her return to work" were even more far-reaching than the term "additional leave" and were beyond the scope of maternity protection.
293. The Employer Vice-Chairperson supported the amendment, pointing out that the wording "a period following her return to work" was very unclear. The Worker Vice-Chairperson observed that the period in question was not unclear since it was to be prescribed by national laws and regulations. The Worker members supported the Office text. The Government member of Croatia also opposed the amendment, on the basis that the aim of the Convention was to safeguard the woman's right to return to work.
294. The amendment was withdrawn for lack of support.
295. The Worker Vice-Chairperson introduced an amendment to insert at the end of the Point the following sentence:
In any event, the burden of proof shall be on the employer to prove that the reasons for dismissal are unrelated to pregnancy or childbirth and its consequences or nursing.
Its intention was to make the provision applicable and to guarantee rights in reality. Discrimination was often difficult to prove in a court of law. The woman would be in a disadvantageous position if she had to prove that the reason for her dismissal was maternity-related. Hence the reversal of the burden of proof was necessary, an important means to prevent discriminatory dismissal.
296. The Employer Vice-Chairperson opposed the amendment, affirming that the Convention would not be improved by such an addition. Employers were aware of their obligation not to discriminate. If it was unlawful for an employer to terminate a worker on the basis of maternity, this meant effectively that the burden of proof was on employers. They did not need to be reminded twice.
297. The Government members of Bahrain, Jordan, Kuwait, Saudi Arabia, Sudan and the United Arab Emirates opposed the amendment. Placing the whole burden of proof on employers resulted in an imbalance. The woman should also have the obligation to prove that the dismissal was due to maternity-related reasons. The Government member of Mexico opposed the amendment, stating that all procedures of labour law regarding unjust dismissal should be taken into account. The Government member of Barbados expressed a preference for the Office text.
298. The Government member of Croatia proposed a subamendment to replace the words "in any event" with "in case of dispute".
299. The question arose as to whether the phrase in the Office text "it should be unlawful for an employer to terminate ..." already implied that the proof of burden rested on the employer. The representative of the Legal Adviser stated that the Office had raised this issue in Report V(2) because of the concerns expressed in a number of replies to the questionnaire. The Office, however, had not felt able to introduce a specific provision relating to burden of proof. The text of the Proposed Conclusions did not deal with the question of the burden of proof, and it was left to the Committee to decide on this issue. She referred to Article 9 of the Termination of Employment Convention, 1982 (No. 158), a provision which made specific reference to that issue.
300. The Government member of Cyprus observed that in the course of the discussion both the Employer and the Worker members had accepted that the burden of proof was on the employers. She could therefore support the proposed amendment. Noting that Article 9 of Convention No. 158 had expressly placed the burden of proof on the employer, she saw no reason why that principle should not be expressly laid down in this Convention. She rejected the proposed subamendment as weakening the provision. The Government member of the Russian Federation associated herself with the views of the Government member of Cyprus. The Government members of Botswana, Kenya, the Libyan Arab Jamahiriya, Namibia, South Africa and Zimbabwe also supported the amendment while opposing the subamendment.
301. The Government member of the United States did not think that the proposed language would place the burden of proof on the employer. The language simply stated a principle. According to national civil rights legislation, which included pregnancy as a prohibited ground of discrimination, the burden would be on the plaintiff to put forward proof. If there were sufficient proof, the burden would shift to the employer who would then have to disprove the plaintiff's case.
302. The Government member of the Netherlands stated that the EU Directive addressed the burden of proof in a more balanced way. First, the woman must provide certain facts. Once she had done that, the burden shifted to the employer.
303. The Employer Vice-Chairperson then proposed a subamendment which resulted in the following text: "The burden of proof shall be decided in accordance with national law and practice." The proposal was opposed by the Worker Vice-Chairperson and received little support from the Committee. The Worker Vice-Chairperson then proposed a subamendment to the original amendment, to delete the words "In any event,". The subamendment "in case of dispute" was withdrawn for lack of support.
304. The Committee then voted on the amendment as subamended by the Worker members. It was adopted by a vote of 22,134 in favour, 19,716 opposed, and 2,232 abstentions.
305. The Government member of New Zealand submitted an amendment to insert at the end of Point 11 the following sentence:
Provided that a woman who is not entitled to maternity leave, due to qualifying criteria prescribed under national laws and practice, will not be considered to have been terminated for reasons related to the pregnancy or childbirth.
The amendment was subsequently withdrawn.
306. The Government member of Colombia proposed an amendment to replace the word "unlawful" with the word "illegal". This addressed a semantic question which pertained to the Spanish version only. The amendment was withdrawn upon agreement that the problem would be resolved in the Drafting Committee.
307. Point 11 was adopted as amended.
Point 12
308. The Government member of the United States submitted an amendment to delete the words "ensure that maternity does not constitute a source of discrimination in employment" and replace them with the words "help eliminate maternity discrimination in employment". She advised the Committee that the proposed amendment was technical, rather than substantive. The meaning of the provision was intended to remain the same.
309. The Worker Vice-Chairperson considered the amendment to be more than a linguistic alteration, and an actual weakening of the Office text. The Worker members opposed the amendment. Similar reasoning led the Government members of Botswana, Kenya, Lesotho, the Libyan Arab Jamahiriya, Namibia, South Africa and Zimbabwe to oppose the amendment as well. The Government Members of the Committee Member States of the European Union noted that the adoption of the Office text with the word "ensure" in it could have a significant, positive psychological effect. They opposed the amendment.
310. The Government member of the United States withdrew the amendment.
311. The Worker Vice-Chairperson introduced an amendment to delete the words "maternity does" and to replace with "pregnancy, and nursing do" and to insert after "discrimination in" the words "any aspect of". The amendment was intended to strengthen and clarify the Office text.
312. The Employer Vice-Chairperson remarked that, in her view, the term "maternity" in the Office text was broad enough to allow countries to determine what aspects of maternity, whether pregnancy, confinement, nursing or otherwise, required particular action, and therefore opposed the Worker members' amendment.
313. The Government member of Cyprus also opposed the amendment, stating that the term "maternity" was more appropriate. The Government Members of the Committee Member States of the European Union and the Government members of Canada, Croatia, Cyprus, Japan, Malta, Norway and Turkey considered the term "maternity", as used in the Office text, to be sufficiently broad and therefore opposed the amendment.
314. The Worker Vice-Chairperson withdrew the amendment.
315. Point 12(1) was adopted.
New paragraph after Point 12
316. The Government members of Australia, Austria, Canada, Croatia, Cyprus, France, Germany, Greece, Italy, Turkey, the United Kingdom and the United States proposed to create a new paragraph 12(2) by moving Point 21 to Point 12. Point 21 dealt with the question of the prohibition of pregnancy testing as a condition of employment. This was a topic of such great importance that it ought to be dealt with in the Convention, rather than the Recommendation.
317. The Employer Vice-Chairperson considered the matter to be important, but stated that the Convention should set out basic principles, such as those already covered by existing Points 11 and 12. Prohibition of pregnancy testing was an important subset of discrimination on the grounds of maternity, but its proper place was in the Recommendation. The provision in the Convention regarding the adoption of measures to counter discrimination should remain wide and flexible to allow many different types of national law and practice.
318. The Worker Vice-Chairperson indicated the Worker members' acceptance of the amendment, but would prefer to see in it some reference to health protection provisions contained in Point 22. The Worker members proposed to add at the end of Point 21 of the Office text the words "and except in accordance with the provisions of Point 22 of the Recommendation". This would enable the provisions of Point 22 to be used as a reference point, rather than as part of the text of the Convention itself. The Government member of Canada said he could accept the proposed subamendment, provided that Point 22 would stay in the Recommendation, and that it could still be amended by the Committee in subsequent discussion.
319. The Employer Vice-Chairperson expressed the view that the subamendment would have the effect of bringing directly into the Convention all of the provisions of Point 22. This strengthened the Employer members' opposition to the amendment. Such prescription was far too restrictive to appear in the Convention. The provisions on non-discrimination and health protection were linked, should be read together and should remain in the Recommendation. As Point 12 currently stood, Members could adopt appropriate legislation according to their national circumstances.
320. The Government member of Cyprus could not accept the Worker members' proposed subamendment which would require, at the very least, a detailed discussion of the implications of moving the paragraph from the Recommendation into the Convention. In view of the complications that would arise, the Worker Vice-Chairperson withdrew the subamendment.
321. The Committee adopted the amendment shifting Point 21 of the Proposed Conclusions to become Point 12(2).
322. Point 12 was adopted as amended.
New Point 13
323. The Government members of Austria, Croatia, Italy and the Netherlands introduced an amendment to insert after Point 12 a new heading "Provisions for nursing mothers" and a new Point 13 as follows:
13(1) A woman should be entitled to daily break(s) to nurse her child, which should be counted as working time and remunerated accordingly.
13(2) The frequency and length of nursing breaks, pursuant to national law and practice, should be adapted to particular needs on the presentation of a medical certificate.
13(3) Provision should be made for the establishment of facilities for nursing under adequate hygienic conditions.
They noted that an entitlement to nursing breaks existed in both Conventions Nos. 3 and 103. Nursing breaks were essential for the health of mothers and children. Report V(2) made clear that most governments were in favour of nursing breaks. For these reasons, the matter should be dealt with in the Convention, and not in the Recommendation. Breaks for nursing should be counted as working time and remunerated accordingly, but the frequency and duration of breaks should not be regulated. Hygienic nursing facilities should be established.
324. An amendment to insert Points 23 and 24 between Points 9 and 10, proposed by the Government member of Colombia, was withdrawn in favour of the amendment submitted by the Government members of Austria, Croatia, Italy and the Netherlands.
325. The Worker Vice-Chairperson supported the amendment, but suggested a subamendment to add at the end of the proposed Point 13(2) the words "or other appropriate certification as determined by national law and practice".
326. The Employer Vice-Chairperson declared that prescriptive provisions on nursing breaks in the Convention would be a significant obstacle to ratification. The proposed amendment was unworkable in two significant respects. First, the proposed Point 13(1) was open-ended. As drafted, it would count an unlimited amount of nursing time -- whether hours, days, months or even years -- as working time. Furthermore, if the expression "remunerated accordingly" were intended to provide that all nursing time should be remunerated at the same rate as other working time, then that would fail to take into account the various remuneration systems in use. Secondly, inclusion of a provision requiring the establishment of nursing facilities would necessarily raise the question of who was to pay. The provision would effectively become a requirement of national legislation. All employers, no matter what the size of their enterprise, or the composition of their workforce, or in what conditions they operated, would be required to have hygienic facilities on their premises for the purpose of nursing. On that basis, few member States would be in a position to ratify the instrument.
327. The Government members of Bahrain, Kuwait, Saudi Arabia, Sudan and the United Arab Emirates further subamended the text to delete Point 13(3), which established measures of an organizational and financial kind that would be more appropriate in the Recommendation. The Worker Vice-Chairperson endorsed the proposal, on the understanding that Point 13(3) was retained in the Recommendation. The Employer Vice-Chairperson submitted a further subamendment for the provision to be encapsulated in a single paragraph as follows:
A woman should be entitled to daily break(s) to nurse her child, the frequency, length and conditions of which to be determined by national law and practice.
She referred to page 210 of Report V(2) where a strong majority of replies were in favour of including nursing breaks within the Recommendation, and noted that some countries were now expressing different views from those set forth in their replies to the questionnaire, a situation which her subamendment sought to address. Although she fully recognized the importance of breastfeeding, account had to be taken of the realities of as many countries as possible, including those where workplaces were often small and scattered. The subamendment was endorsed by the Government members of Japan and Venezuela, but opposed by the Worker members, who said that the reference to working time and remuneration was at the heart of adequate protection; furthermore, breastfeeding had its economic as well as social benefits. The Employer Vice-Chairperson agreed that breastfeeding had a number of different benefits, but said that the reference to working time and remuneration was not sustainable for an international instrument which set minimum standards and would make the Convention unratifiable for many countries. Given the importance of the matter to her group, she requested a formal vote on the subamendment, which was rejected by 21,018 votes in favour, 23,250 votes against, and 186 abstentions.
328. The discussion continued with the subamendment submitted by the Government members of Bahrain, Kuwait, Saudi Arabia, Sudan and the United Arab Emirates as endorsed by the Worker members. The Government member of Spain said that she could not accept Point 13(2), since breastfeeding was a natural activity which should not be regulated by law. The Government member of India said the new instrument should not be the same as Convention No. 103, which had attracted comparatively few ratifications, and expressed his concerns that more and more provisions of the Recommendation were being imported into the Convention. The Government member of Hungary also opposed the subamendment, as did the Government member of Finland, speaking on behalf of the Nordic countries. The Government member of the United States, who strongly supported the principle of including nursing in the Convention, proposed a subamendment in the light of her national legislation for the first paragraph to read: "A woman should be entitled to daily break(s) to nurse her child, which should be counted as working time, like other breaks", which was subsequently withdrawn following lack of support. The Government member of the Netherlands recalled the importance which UNICEF attached to the inclusion of nursing in the Convention and said that breastfeeding was a matter which affected the health of the child. Following further support from Government members, the subamendment was adopted.
329. New Points 13(l) and 13(2) were adopted as amended.
Point 13
330. The Employer Vice-Chairperson submitted an amendment to delete the Point, which she said was not an appropriate provision for a Convention. The periodical reporting requirement implied an expectation that maternity leave would be extended and the rate of benefit increased, matters which should be left to the discretion of countries themselves. The Worker Vice-Chairperson opposed the amendment, since the promotional element of the Office text would help direct the new instrument towards the future, with account being taken of national circumstances, which was the purpose of the revision process. The Government member of the United Kingdom, in the light of an identical amendment submitted by the Government members of Germany, Ireland, New Zealand, Spain, Switzerland and the United Kingdom, asked for clarification from the Legal Adviser as to whether a member State which provided benefits in excess of those prescribed by Point 7(1) and Point 9(3) and of the provisions which might be incorporated into the Recommendation would be required to continue to make such improvements and whether this had been the intention of the Office. He also requested clarification as to whether the statutory or administrative reviews of benefits and amounts of leave undertaken in some countries, such as the United Kingdom, and in which the social partners played a role, would meet the requirements regarding periodical reviews.
331. The representative of the Legal Adviser said that, read literally, Point 13 could be seen as leading to continuing improvement, although this had not been the intention of the Office. Concerning the second question, she said that there was no requirement to set up a specific review mechanism, so that existing statutory or administrative review machinery would satisfy the requirements regarding periodical reviews.
332. In the light of the clarification from the representative of the Legal Adviser, the Employer Vice-Chairperson said it was all the more important to seek deletion of the Point, since Points 7(2) and 7(3) and Point 10(2) already achieved as much as the provision for review was intended to achieve. This must be so if those provisions were the points of reference which the Office had in mind when it drafted Point 13. The representative of the Legal Adviser drew the Committee's attention to the fact that Points 7(2) and (3) were not directed to the same goal as Point 13. Points 7(2) and (3) would allow Members, on a voluntary basis, to increase the period of leave granted to women, whereas Point 13 would require Members to engage in a process of periodic review. As regards Point 10(2), she recalled that a provision of this nature was contemplated by article 19(3) of the Constitution of the ILO, by virtue of which the Conference was obliged to have due regard, in framing Conventions of general application, to the conditions in certain countries which might make application difficult. Point 10(1) was specifically included to take account of the situation of developing countries which might not be able to provide benefits in accordance with Point 9(3) immediately.
333. The Employer Vice-Chairperson wondered whether there were other ILO Conventions which contained provisions for continuous improvement and requested the Legal Adviser to provide instances.
334. The Government members of Germany, Ireland, New Zealand, Spain, Switzerland and the United Kingdom said that they would withdraw their amendment on the understanding that the matter could be revisited during the second discussion. The Employer Vice-Chairperson also withdrew her amendment, on the same understanding.
335. An amendment submitted by the Employer members to delete all the words after "the appropriateness" and replace with "of its maternity protection laws and practices" was also withdrawn in the light of the discussion.
336. An amendment submitted by the Worker members to insert at the end of the Point the words "and the possibilities of progressively extending the provisions of the Convention to categories of workers excluded by the Member, under Article 6(2).", was withdrawn, on the understanding that they would revisit the subject during the second discussion.
337. An amendment submitted by the Government members of Ireland, New Zealand and the United Kingdom to insert at the end of the Point the words "unless subject to regular administrative or statutory review through national law or practice" was withdrawn in the light of the discussion.
338. Point 13 was adopted without change.
New Points after Point 13
339. An amendment was submitted by the Government members of Croatia, Denmark, Finland, Norway and Sweden to insert a new Point 14, reproducing the text of Points 25(1) and 25(2), and, after the new Point 14, to insert a new Point 15 as follows:
(l) Any member State which ratifies this Convention may, by a declaration appended to its ratification, exclude Point 14 from its acceptance of the Convention.
(2) Any member State which has made such a declaration may at any time cancel that declaration by a subsequent declaration.
(3) Every Member for which a declaration made under paragraph l of this Point is in force shall indicate in its reports upon the application of this Convention the position of its law and practice in regard to the provisions of the Point excluded from its acceptance, the extent to which effect has been given, or is proposed to be given, to the said provisions and the reasons for which it has not yet included them in its acceptance of the Convention.
On behalf of the sponsors, the Government member of Sweden said that although the instrument laid down minimum standards, it was also looking towards the future and that her proposal took as its model the provisions of Convention No. 143. She recognized that parental leave was not available in many countries, but emphasized that her text was an optional provision and would not therefore compromise the flexibility of the instrument. The Worker Vice-Chairperson supported the thrust of the amendment, which she subamended to replace the word "or" by "and" in Point 25(1) and to delete the words "the use and distribution of parental leave" in Point 25(2). The Employer Vice-Chairperson strongly opposed the proposal, both as a matter of principle, since very few countries had achieved the high levels attained in this respect by the sponsors, and because paragraph (3) of the amendment would inevitably impose unacceptable reporting obligations on Members who had made the declaration to which paragraph (1) referred. The Worker members' subamendment would also make it possible for both the employed mother and the employed father to take parental leave at the same time following expiry of maternity leave. Employers needed to know their obligations, especially in cases where there were two employers involved. Furthermore, in commenting on a question raised by the Government member of Poland, the Employer Vice-Chairperson pointed out that, under the wording proposed, a Member would be required to state the reasons why it had not yet included the new provisions in its national law. The Government member of Sweden endorsed the subamendment, but it was opposed by the Government member of Croatia. The Government member of Cyprus supported the provision respecting parental leave, but said that the subamendment as it stood would widen the Convention and might require a change in its title and Preamble. The Government member of Italy recalled that some of the provisions of Points 25 and 26 were already contained in the European Union Council Directive 96/34/EC concerning parental leave. The Government member of Egypt said that it would be difficult for her country to support the first part of the subamendment, since it had no legislation on this subject, and similar difficulties were noted by the Government members of Barbados and Côte d'Ivoire. The Government members of Bahrain, Colombia, Guatemala, Kuwait, Mexico, Saudi Arabia, Sudan and the United Arab Emirates opposed the subamendment. The Government member of Japan said that the subamendment would result in some overlap with the Workers with Family Responsibilities Convention, 1981 (No. 156), a view shared by the Government members of New Zealand and the United Kingdom. Following further opposition from Government members, the subamendment was withdrawn by its sponsors and, in the light of the discussion, the Government member of Sweden withdrew the original amendment.
New Point after Point 14
340. The Government member of Croatia submitted an amendment to add a new Point after Point 14, which she subamended to read:
15. The Convention shall have a provision prescribing that the ratification of this Convention does not mean ipso jure denunciation of Convention No. 103 and that Convention No. 103 shall not cease to be open to ratification as from the date when this Convention comes into force.
The intention of the proposal was to ensure that the new instrument did not establish rights which were less than those guaranteed by Convention No. 103. The Employer Vice-Chairperson opposed the subamendment and said that a new instrument would not result in any automatic reduction of previously established standards under a Member's domestic legislation. Furthermore, she believed that it was inappropriate and confusing to have two international instruments on the subject at the same time.
341. In response to a request for clarification from the Government member of Croatia, the representative of the Legal Adviser said that the provision in the subamendment was part of the wording included in the standard final provisions of Conventions since 1946. This was normally added by the Conference Drafting Committee. If there was good reason to depart from the standard denunciation provision, this would have to be examined during the preparatory work.
342. In response to a request from the Worker members for clarification concerning possible conflicts which might arise if a new Convention were adopted and ratified while an old Convention remained in place, the representative of the Legal Adviser said that it was theoretically possible to provide that the ratification of a revising Convention should not involve the ipso jure denunciation of the Convention being revised by specifically providing for this eventuality; account would have to be taken of the content of the new Convention and a determination made as to whether it contained any provisions deemed inconsistent with the existing Convention. This analysis would be possible once the outline of the content were known. This would imply, as long as there was no inconsistency, that the member State concerned would be bound by the obligations under the two Conventions and would have to report on them separately under article 22. It also meant that if a member State which had ratified both wanted to change any of its provisions which would affect its obligations under the earlier Convention, it would have to wait until the window for denunciations was open. In response to a further question as to whether a similar situation had arisen in the case of other Conventions, the representative of the Legal Adviser said that she had not found any examples; either there were no final clauses or the text stated that it was not a revising Convention, as in the case of Convention No. 131.
343. Following lack of support for the subamendment, it was withdrawn, along with the amendment by the Government member of Croatia.
344. An amendment submitted by the Government member of Norway concerning Point 1 to insert after the words "international standards" the following: "related to rights concerning pregnancy, birth and early childhood", was withdrawn by its sponsor.
B. Proposed Conclusions with a view to a Recommendation
Point 15
345. The Government member of Colombia submitted an amendment to delete paragraphs (1), (3), (4) and (5). The Employer members seconded it but the amendment was subsequently withdrawn.
Point 15(1)
346. The Employer Vice-Chairperson introduced an amendment to delete Point 15(1). In light of the provisions adopted with regard to periodic review and also the possibility offered to deposit a further declaration with the Director-General extending the period of maternity leave, it was superfluous to retain Point 15(1) in the Recommendation. Expectations should not be further raised regarding the length of leave. The amendment was opposed by the Worker members as well as by many Governments. The Employer Vice-Chairperson withdrew the amendment.
347. The Employer Vice-Chairperson submitted an amendment to delete the words "to at least 14 weeks" and to replace them with the words "beyond 12 weeks". In light of the preceding discussion, she withdrew the amendment.
348. The Worker Vice-Chairperson introduced an amendment to delete "14" and to replace it by "16". Since the Recommendation should provide guidance for national legislation, it should send a signal as to the direction in which countries should move. The Government member of Greece introduced an identical amendment, arguing that 16 weeks of maternity leave had a positive effect on the health of the mother and was indispensable for a full recovery.
349. The Employer Vice-Chairperson opposed the amendments. Fourteen weeks of maternity leave was an acceptable guideline for countries. To extend leave from 12 weeks to 16 weeks would raise a higher barrier, which could discourage ratification. The Government member of Cyprus expressed reservations about moving from 12 weeks in the Convention to 16 weeks in the Recommendation, as this meant a significant increase.
350. The Worker Vice-Chairperson observed that this Point related to the Recommendation and not to the Convention. Countries would have no obligation to implement this provision, nor were there any reporting requirements. The Government member of Guatemala added, in support of the amendment, that the Convention should provide minimum standards whereas the Recommendation should provide ideal standards. The Government member of Germany, speaking also on behalf of the Government Members of the Committee Member States of the European Union, supported the amendment, as did the Government members of Botswana, Kenya, Lesotho, Namibia, South Africa and Zimbabwe.
351. The Employer Vice-Chairperson observed that the Committee of Experts would look to the Recommendation to see how the Convention was to be applied. The Employer members argued that, in evaluating compliance with Point 13 regarding periodic examination of the appropriateness of extending maternity leave or increasing benefits, the Committee of Experts would look to Point 15 in the Recommendation for guidance. It was also important to look at the fact that the Committee was considering a Convention supplemented by a Recommendation. This meant that countries adopting the Convention in good faith would also be aspiring to the standards laid out in the Recommendation. The two instruments were to be read together.
352. A member of the secretariat explained that Recommendations did not create legally binding obligations, were not ratifiable by member States and were meant to provide guidance for national legislation and practice. The Committee of Experts might refer to the provisions of the Recommendation accompanying the Convention where they clarified and gave guidance to member States as to how the Convention might be implemented.
353. The Government member of Mexico supported the Office text, noting the implications of longer leave periods for social security and medical services. The Government members of Egypt and Ethiopia also supported the Office text, the latter specifying the requirement to periodically review the leave period in Point 13 as her main reason.
354. The Employer Vice-Chairperson referred to the terms of paragraph 6 of article 19 of the ILO Constitution to clarify the status of a Recommendation. That paragraph clearly showed that, in adopting standards, a member State committed itself to report to the ILO the position of its law and practice and to show the extent to which the provisions of the Recommendation had been given effect. Paragraph 6(d) of article 19 enabled the Committee of Experts to look to the Recommendation and called on member States to report on how they had implemented its provisions.
355. In reply to a question from the Government member of the Syrian Arab Republic, the representative of the Legal Adviser addressed the question of the legal obligations arising from the Recommendation. She stated that a Recommendation did not create legally binding obligations; rather it provided Members with guidance for the development and implementation of national laws and regulations. A Recommendation normally supplemented a Convention. It contained greater detail and its provisions could go beyond the standards contained in the Convention. Unlike a Recommendation, a Convention created binding legal obligations for a Member which had ratified it. By virtue of their membership in the ILO, all member States undertook an obligation to respect and implement the provisions of the Constitution. Paragraph 6(b) of article 19 of the Constitution provided that each Member undertook to bring the Recommendation before the competent authority within a period of one year from the closing of the session of the Conference. The only other obligation with regard to a Recommendation was contained in paragraph 6(d) of article 19 which provided that the Member report on its law and practice at the request of the Governing Body. The general surveys on the situation concerning law and practice in member States relating to different standards had been undertaken in the framework of paragraph 6(d), and were examined by the Committee of Experts. This was not the same type of reporting obligation as that provided for in article 22 of the Constitution with respect to ratified Conventions.
356. Following these clarifications, the Committee adopted the amendments.
357. Point 15(1) was adopted as amended.
Point 15(2)
358. The Chairperson recalled that, in an earlier discussion, Point 15(2) had been transferred to become Point 8(3).
Point 15(3)
359. The Government members of Australia, Canada, Denmark, Malta, the Netherlands, New Zealand, Switzerland, Turkey, the United Kingdom and the United States introduced an amendment to delete the paragraph. There was no need for an additional leave provision for multiple births in light of the possible parental leave provisions to be discussed later. The Employer members and the Government members of Botswana, Colombia, Kenya, Lesotho, Namibia, South Africa and Zimbabwe supported the amendment. The Government members of Austria, China, Croatia, Finland, France, Germany, Guatemala, Italy, Japan, Luxembourg, Norway, Poland, Portugal, the Russian Federation and Spain opposed the amendment, which was withdrawn.
360. The Employer members submitted an amendment to add at the end of the paragraph the words "in accordance with national law and practice" in order to enable countries to handle such additional leave as they saw fit. The Worker Vice-Chairperson opposed the amendment as superfluous. In light of the opposition expressed by the Government members of Australia, Austria, Belgium, Finland, France, Germany, Greece, Italy, Japan, Luxembourg, the Netherlands, Norway, Portugal, Spain, Sweden, Switzerland and the United Kingdom, the amendment was withdrawn.
361. The Government member of Finland withdrew an amendment, jointly submitted with the Government members of Norway and Sweden, to add a new sentence at the end of Point 15(3) as follows: "Special consideration should be given to introduce paternal leave in such cases."
362. Point 15(3) was adopted without change.
Point 15(4)
363. The Government member of Sweden withdrew an amendment, jointly submitted with the Government members of Finland and Norway, to add a new sentence at the end of the paragraph as follows: "After the birth of the child and following the compulsory period of maternity leave, the same should apply to the father, when parental leave is provided for."
364. The Worker Vice-Chairperson introduced an amendment to delete the words "to the extent possible", stating that the Recommendation should provide clear guidance. The Employer Vice-Chairperson opposed the amendment, stressing the need for appropriate balance between maternity protection and the interests of the employer. Employment relations and payment obligations required a framework of certainty. The free choice of the woman as to when she might wish to take leave introduced excessive latitude and the deletion of the phrase "to the extent possible" would introduce even more. Such uncertainty would raise barriers to women's employment. Furthermore, such a provision would also be complicated to administer. The Government member of Cyprus supported the Office text. The amendment was subsequently withdrawn.
365. The Employer Vice-Chairperson introduced an amendment to insert, between "possible" and "the woman", the words "within the limit of the period of maternity leave set by national law and practice" and to delete the word "freely". The Employer members were not opposed to women having the choice as to what portion of their maternity leave to take before and after the birth of their child. They did oppose the possibility, raised by the Office text, that a woman would be able to break up her entitlement to maternity leave into many small periods of leave. Women's freedom of choice should be set within appropriate limits. The Worker members and the Government member of Guatemala opposed the amendment as unnecessary.
366. Clarification was sought as to the Office's intention with regard to the words "to the extent possible" and "freely". The representative of the Secretary-General stated that "to the extent possible" was intended to take into account national law and practice as well as the exigencies of enterprises, such as their staffing, administrative and operational requirements. The word "freely" emphasized the woman's right to choose based on her own needs as well as the advice of her doctor. The intention of the Office was thus to seek to accommodate different measures (legislation, collective agreements and enterprise practice) which would take into account both the needs of the enterprise and those of the woman.
367. The Employer members withdrew their amendment.
368. Point 15(4) was adopted.
Point 15(5)
369. The Employer Vice-Chairperson submitted an amendment to delete the paragraph. The principal reason was the uncertainty the paragraph introduced. The uncertain length of hospitalization and of the periods during which the woman might wish to suspend her maternity leave would make it difficult, if not impossible, for employers to make plans with regard to their operational requirements. The Committee had adopted Point 15(4), which gave a woman the ability to choose when to take her leave. If a woman exercised this right, and an employer made arrangements taking that into account, it would only lead to problems if, for extraneous reasons, the woman could then change her mind and seek to rearrange her leave entitlements. Governments would also have difficulty administering social security benefits. The Government member of Spain, having submitted an identical amendment, said that the wording of this paragraph was so confused as to give rise to misinterpretation. It could be interpreted that a mother postponed the non-compulsory period of the maternity leave until her child left hospital, but while the child was in hospital she would have to work, which would be prejudicial to the interests of all women workers. She evoked the potential problems enterprises might face with regard to temporary replacement staff. Most Governments viewed the objective of maternity protection as being health protection for the mother and child. The objective of Point 15(5) could be better met through sick leave or parental leave provisions. The Government member of Canada, who had submitted an identical amendment, associated himself with the remarks of the Employer Vice-Chairperson and the Government member of Spain. The Government member of Egypt supported the amendment.
370. The Worker Vice-Chairperson strongly supported the Office text. It was only natural that, in the event of her infant's hospitalization, the woman would wish to care for the child on its release from hospital. A woman should not be compelled to exhaust her non-compulsory leave and then be left with no further leave entitlement to use when the child returned home. The Government member of Poland opposed the amendments and associated herself with the remarks of the Worker Vice-Chairperson. The Government member of the United States preferred the Office text. Women should not be compelled to use a leave entitlement in a manner that might be ill-adapted to their individual circumstances. The Government member of Guatemala urged the Committee to remember that this provision would apply to a woman whose infant had been born prematurely or was facing health problems so serious as to require hospitalization. The survival of the child might depend on its mother being close by; it was therefore a question of humanity to give the woman in this special situation the opportunity to be with her child. The Government members of France and Spain opposed the amendment, but could not fully support the Office text. The Government member of Spain expressed the feeling that further preparatory work was necessary regarding the period during which the mother postponed her maternity leave was to be treated.
371. The Government member of Cyprus expressed reservations concerning the amendment. From the social policy perspective it would be good to give the woman the option of postponing her leave, if necessary. If the benefits were financed through social security, however, it might prove too complicated to implement. Granting a right which could not be exercised in practice was unwise. The Government member of Germany associated herself with those views.
372. The representative of the World Health Organization noted that health services varied widely from country to country. In some, the mother might need to be physically present with the child in hospital, whereas in others, children who were discharged from hospital might be in need of further care at home from the mother.
373. When put to a vote, the amendment to delete Point 15(5) was adopted by a vote of 9,288 in favour and 9,202 opposed, with 1,376 abstentions.
374. The Government member of Croatia submitted an amendment to add a new Point 15(6), which read as follows: "The right to postnatal leave could be utilized under the same conditions by an adoptive mother if the child is under a certain age as determined by national legislation." The amendment was withdrawn.
375. Point 15 was adopted as amended.
Point 16
376. The Employer members submitted an amendment to delete Point 16. The Employer Vice-Chairperson saw the requirement to raise the cash maternity benefits to the full amount of the woman's earnings as setting an impossible standard for most countries. In addition, she thought that it would cut across the provision of other types of social security benefits provided. The benefit levels provided under Points 9 and 10, together with the periodic examination under Point 13, were sufficient. The Government members of Canada and New Zealand had submitted an identical amendment, considering that the replacement of a woman's full salary was not a realistic target. The Government member of New Zealand was also concerned that the Point presupposed the benefits to be earnings-related and took no account of countries that chose to provide a flat rate benefit. Countries should not be compelled to adopt an earnings-related benefit.
377. The Worker Vice-Chairperson opposed the amendment. The words "where practicable" gave the provision flexibility. The Government member of Guatemala supported the Office text. She noted that a large number of countries, including her own, provided women with their full pay during maternity leave. The Government member of Kenya noted that legislation in her country provided for full pay during maternity leave and saw this issue more as a matter of goodwill than of the level of development. The Government member of Hungary also supported the Office text.
378. The Employer Vice-Chairperson congratulated those countries which were able to provide such a high level of benefits through their social security systems, but cautioned the Committee that shifting the burden to individual employers could have negative economic and social consequences. Not only would employers be compelled to pay 100 per cent of the woman's salary, but also would still have to pay 100 per cent of the replacement worker's wages. This provision would discourage the employment of women of childbearing age.
379. The two amendments were withdrawn.
380. The Employer Vice-Chairperson withdrew an amendment to delete the word "cash".
381. The Worker Vice-Chairperson submitted an amendment to take account of new Point 8(3). She introduced a subamendment to insert after "maternity leave" the words "as referred to in Points 8(1) and 8(3)". The Employer Vice-Chairperson opposed the proposal. The amendment was adopted as subamended.
382. The Employer Vice-Chairperson introduced an amendment to add after the word "practicable," the words "and after consultation with the representative organizations of employers and workers". Governments did not always take into account the impact on employment and indeed on economic sustainability of transferring liability for direct payments from governments to employers. Tripartite consultations were necessary. The Worker Vice-Chairperson was pleased to support the amendment, which was thus adopted.
383. The Government members of Finland, Norway and Sweden withdrew their amendment, the effect of which would have resulted in the following text: Where practicable, the cash benefits to which a woman or a father is entitled during maternity leave, additional leave (as referred to in Point 8(2) above) or parental leave should be raised to the full amount of the parent's previous earnings or of such of those earnings as are taken into account for the purpose of computing benefits.
384. Point 16 was adopted as amended.
Point 17
385. The Government member of Greece proposed an amendment to delete the words "To the extent possible". The Recommendation should be drafted in such a way as to provide clear guidelines. In opposing the amendment, the Employer Vice-Chairperson declared that, although the Recommendation did not create a legally binding obligation, it did create a moral obligation for governments which accepted it in good faith. She noted the need to find the right balance between the level of a country's economic and social development and the capacity of its social security systems and medical services to provide such benefits. The amendment was withdrawn.
386. The Employer members submitted an amendment to add after the words "medical benefits" the words "to be granted in accordance with paragraph 9(5) above". The intention was to provide a clear link to the Point in the Proposed Conclusions with a view to a Convention to which it referred. The Government member of New Zealand proposed a subamendment to replace the words "to be granted in accordance with paragraph 9(5) above" with the phrase "as referred to in Point 9(6) above". The amendment was adopted as subamended.
387. Point 17 was adopted as amended.
Point 18
388. The Employer Vice-Chairperson introduced an amendment to delete the words "through compulsory social insurance, public funds or". The intention of the amendment was to make clear that cash and maternity benefits should be provided by member States in accordance with their own national law and practice. It might unduly limit or direct a Member's choices if the text were to include examples of some ways of providing these benefits, but not of others. The Worker Vice-Chairperson remarked that, as drafted, the Point offered both necessary guidance and appropriate flexibility. The Worker members therefore preferred the Office text. The Government member of Guatemala considered that the Office text took account of all existing possibilities. In her view it would be inappropriate to delete from the Point all reference to "social insurance", as such schemes operated in over 60 countries. The amendment was withdrawn.
389. Point 18 was adopted without change.
Point 19
390. The Government members of Finland, Norway and Sweden had submitted an amendment to insert after the words "maternity benefits" the words "or parental benefits", which was withdrawn.
391. The Employer members submitted an amendment to delete the words "both by the employer and the employees or by the employer" and replace them with the words "by the employer, or by the employee, or by both." The Employer Vice-Chairperson observed that Point 19 referred to only two methods of payment for compulsory social insurance: funding by employers, and joint funding by both employers and employees. It failed to refer to countries in which the employee alone made contributions. The Committee should recall that the matter of contributions toward maternity benefits could include questions concerning funding of compulsory social insurance for medical, pharmaceutical and other benefits as well.
392. The Worker Vice-Chairperson remarked that the proposed amendment only demonstrated how dangerous a relatively small change of words could be. In the case of this amendment, such a change would open up the possibility of governments adopting systems in which workers alone would be required to pay for their own social insurance. The Worker members could accept systems in which contributions were shared. Many such systems were already in place. The Worker members could not, however, accept the possibility of sole financing of social benefits by workers, and thus rejected the amendment.
393. In response to a query, a representative of the Secretary-General noted that, to the best of the Office's knowledge, there was no country in which compulsory social insurance contributions were required only of employees.
394. The Employer member of Chile advised that, in his country, a recently adopted system required employees alone to make contributions to compulsory social insurance. This had been recently negotiated, and had involved an increase in remuneration from employers. Nevertheless, it was workers who were required to make the contributions. The Government member of Turkey informed the Committee that in Turkey some social insurance schemes had been financed by contributions exclusively from workers. Accordingly, Turkey had no problem with the amendment and supported it.
395. The Government member of Hungary observed that his Government would very much like to avoid the situation foreseen by the amendment. The Government member of Colombia recorded her support for the Office text. The Government member of Senegal supported the Office text and added that, to her knowledge, the system described in Chile was for the capitalization of retirement benefits and did not offer maternity benefits. The Government member of Guatemala remarked that, of the Latin American countries present, none had a compulsory social insurance scheme requiring only workers to make contributions. Systems in those countries involved joint contributions from governments, employers and workers. She added that, if the amendment were adopted, it would open the possibility of women having to pay individually for their own maternity benefits, and perhaps even to purchase their own insurance. She thus supported the Office text.
396. The Government member of Canada offered a subamendment which he considered took account of the concerns expressed in the discussion thus far without substantially altering the impact of the text. He proposed to delete the words "whether paid both by the employer and the employees or by the employer". The text would thus read:
Any contribution due under compulsory social insurance providing maternity benefits and any tax based upon payrolls which is raised for the purpose of providing such benefits should be paid in respect of the total number of men and women employed, without distinction of sex.
Without specific reference to how the contributions were raised, the text would seem to cover all systems. The Employer members accepted the subamendment. The Worker Vice-Chairperson strongly urged the Committee to adopt the Office text. In light of the discussion, the amendment was withdrawn.
397. Point 19 was adopted without change.
New Point after Point 19
398. The Government member of the Netherlands proposed an amendment to insert under the section entitled "Financing of benefits" a new Point 20 as follows:
Where a Member's laws or regulations require the woman to share in the cost of medical care, the rules governing such cost-sharing shall be such as not to impose hardship or render medical and social protection less effective.
The objective of the amendment was to make clear that cost-sharing arrangements were allowed, but that rules should be set to avoid hardship. The Worker Vice-Chairperson fully supported the amendment. The Government member of Croatia also supported this amendment, as this provision was laid down both in the Social Security (Minimum Standards) Convention, 1952 (No. 102), and the European Code of Social Security.
399. The Employer Vice-Chairperson objected to the amendment on the grounds that the notion of hardship was subjective. Rules could not be established in a general sense since hardship might nonetheless result to individuals or to groups. The Government member of Senegal also opposed the amendment. The Government member of the Netherlands withdrew the amendment. She said that she would put the issue on the table again during the second discussion.
400. The Worker Vice-Chairperson introduced an amendment to insert under the section entitled "Employment protection and non-discrimination" the following new Point:
20. Members should take the necessary measures to prohibit the dismissal of workers throughout the period from the beginning of their pregnancy to the end of the maternity leave (referred to in Points 7 and 8 above) and nursing period, other than in exceptional cases not connected with their condition and provided that the competent authority has given its consent. In all cases, the employer must provide the reason for any dismissal in writing and prove that the dismissal is unrelated to pregnancy or childbirth and its consequences or nursing.
Its objective was to prevent the dismissal of women during the whole maternity period. Furthermore, it put the burden of proof in case of unlawful dismissal on the employer.
401. The Employer Vice-Chairperson strongly opposed the amendment. The principles of non-discrimination in the termination of employment were contained in Point 11. The amendment would require agreement in advance of the competent authority for each individual case of dismissal. No definition of exceptional cases was provided. The requirement that the reasons for dismissal be provided in written form would place an onerous burden on the employer. The Government member of Poland proposed a subamendment which would result in the following text:
Members should take the necessary measures to prohibit the dismissal of workers throughout the period from the beginning of their pregnancy to the end of the maternity leave (referred to in Points 7 and 8 above) and nursing period, except when the employment relationship cannot last longer because of objective reasons.
Objective reasons could include, for example, the liquidation of the enterprise. The Government member of France opposed the subamendment due to the legal problems it might pose. The Worker Vice-Chairperson rejected the subamendment, preferring to retain the requirement of a written notice stating the reasons for dismissal, a view supported by the Government member of the Russian Federation. The subamendment was subsequently withdrawn.
402. The Worker Vice-Chairperson referred to Article 14(3) of the Termination of Employment Convention, 1982 (No. 158), which required that the employer notify the competent authority a minimum period before carrying out the terminations. The Employer Vice-Chairperson observed that, as Convention No. 158 was ratified by only 28 countries, it could not be regarded as a successful instrument. It was not possible in reality that the competent authority give its consensus in every single case of termination. The Employer Vice-Chairperson further stated that the amendment strayed away from maternity protection towards the rewriting of the rules of dismissal. Point 11 already provided women with the needed protection. The Government members of Barbados and Canada joined the Employer members in opposing the amendment.
403. The amendment was withdrawn.
Point 20
404. The Employer Vice-Chairperson introduced an amendment to delete Point 20 and replace it with the following text:
A woman who meets eligibility criteria as determined by national law and practice should be entitled to return to her former position or a similar one at the end of her maternity leave. The period of maternity leave might be considered as a period of service for the determination of some rights, as provided by national law and practice.
The amendment took account of two issues. First, many countries had eligibility requirements for maternity leave. These typically related to length of service or minimum hours per week. Employers' ability to keep a job open might be influenced by such criteria. The second issue related to the consideration of maternity leave as a period of service. Not all rights were related to time-in-service as, for example, bonus payments based on increased production. The Employer members had agreed to Point 11. This amendment concerned an employer's obligation to hold a job open for a woman, such as a casual or part-time worker, who did not meet eligibility requirements. The employment relationship would be ending for a reason other than dismissal. The Government member of New Zealand supported the second part of the amendment which took into account particular situations, such as the granting of bonuses or of extra holidays. The Worker Vice-Chairperson opposed the amendment, which could result in the dismissal of women who did not satisfy eligibility requirements. The provision would effectively create two categories of women: one protected, the other not. This would result in discrimination. The Government members of Kenya, the Philippines and South Africa also opposed the amendment as permitting discrimination. The amendment was withdrawn for lack of support.
405. The Government members of Canada and New Zealand submitted an amendment to delete the words "the period of which" and replace them by the words "and, to the greatest extent possible, the period of maternity leave." The amendment recalled the second part of the previous amendment. There were circumstances in which service-related rights should not accrue. The Worker members preferred the Office text. The Employer Vice-Chairperson also opposed the amendment, which was withdrawn.
406. The Government member of Japan submitted an amendment to insert after the second occurrence of the word "should" the words ", as appropriate,". Considering the period of leave as a period of service when determining the worker's rights was important. However, to count it as service for any and all purposes would be difficult. An element of flexibility was desirable. The Employer Vice-Chairperson fully supported the amendment. The Government member of Cyprus noted that the amendment aimed to introduce flexibility, but the effect would be to take away the right it intended to give. She was therefore against the amendment. The Worker members and the Government member of Cameroon considered that the words "as appropriate" introduced an element of discrimination. The proposed text could lead to bias on the part of the employer. The Government members of Colombia, Ethiopia, Guatemala and Mexico also preferred the Office text. The Government member of New Zealand, while supporting the amendment, noted that the phrase "as appropriate" might need to be revisited in the next discussion. The amendment was withdrawn.
407. The Worker Vice-Chairperson introduced an amendment to delete the words "a similar one" and replace them with the words "an equivalent position paid at the same rate". The intention was to lend greater precision to the Office text. The Government member of Cameroon supported the amendment, which would help to avoid situations in which a woman returned to a similar position but with reduced remuneration. The Employer Vice-Chairperson opposed the amendment, which would dramatically reduce employers' ability to place women returning from leave. The phrase "a similar position" was well understood in the national legislation of many countries. The result of the amendment would be particularly onerous, given that during a woman's absence, circumstances might change in the workplace, especially taking into account the periods of leave concerned. The Government member of Cyprus preferred the Office text. A vote was taken, the result of which was 10,750 in favour and 9,460 opposed with 516 abstentions. The amendment was adopted.
408. Point 20 was adopted as amended.
Point 21
409. By an earlier decision, Point 21 had been moved to create a new Point 12(2).
Point 22
Point 22(1)
410. The Worker Vice-Chairperson introduced an amendment to delete Point 22(1) and to replace it with the following text:
Workplaces should be adapted to ensure that they are safe for the pregnant or nursing woman and are not prejudicial to the health of the woman and/or child. However, where this is not possible, no pregnant or nursing woman should be obliged to perform work defined by the competent authority as being prejudicial to the health of the woman and/or the child.
The purpose of the amendment was to strengthen Point 22 by providing for the adaptation of the workplace to ensure health protection for the woman and the child. If this were not possible, there should be no obligation for the woman to continue performing the work. The Worker members accepted the need for the judgement of the competent authority on the potential hazard of the workplace to the mother and child. The Employer Vice-Chairperson opposed the amendment. It was unreasonable to hold that all workplaces should be adapted. Furthermore, no time period was identified in the second part of the amendment. Point 22(2) was adequate and presented a variety of options. The amendment was subsequently withdrawn.
411. The Government member of the United States submitted an amendment to delete all the words after the first use of "child" and replace them with the words "should be a decision taken by the woman, without duress, and in conjunction with a competent medical authority, if possible." The amendment was subamended by its sponsor to end the sentence after "duress". The purpose was to emphasize the freedom of choice of the woman who might wish to continue working. The Employer Vice-Chairperson opposed the amendment, in view of a subsequent amendment more appropriate to cover the envisaged situation. The Worker Vice-Chairperson felt that the amended text could be misused and did not support it. The amendment was withdrawn.
412. The Employer Vice-Chairperson introduced an amendment to delete the words following "prohibited" and replace them with "for such reasons and for such length as may be determined by national law and practice". The competent authorities should determine the work that might be prejudicial to the health of the woman and child, rather than applying blanket prohibitions. She noted that the competent authority should specify reasons for a particular decision in accordance with national law and practice. The Government member of New Zealand supported the amendment which would allow the competent authority to determine the appropriate period and circumstances in which the provision could apply. The Government member of the United States supported the amendment as flexible and realistic. The Worker Vice-Chairperson preferred the Office text for its clarity and its intention to provide protection. The amendment was withdrawn by the Employer Vice-Chairperson, who expressed the view that the likely effect of such three-month prohibitions of employment after a woman had given birth and the identified risk was to the unborn child only, was that women would not be employed in a variety of jobs.
413. The Government member of Canada submitted an amendment to insert the words "or determined by medical professionals" after the words "competent authority". The determination might be more appropriately based on medical expertise. The Worker Vice-Chairperson opposed the amendment in view of the risk that an assessment by company doctors could lead to a conflict of interest. The Employer Vice-Chairperson also opposed the amendment, indicating that it was likely that the competent authorities would draw upon medical expertise in reaching a decision. The amendment was withdrawn.
414. The Employer members submitted an amendment to insert after the words "employment of a woman" the words "covered by the terms of this instrument", which was withdrawn.
415. Point 22(1) was adopted without change.
Point 22(2)
416. Turning to Point 22(2), the Government member of Spain submitted an amendment to delete the words "is the subject of a prohibition of employment"; to delete after the word "nursing" the word "or"; and to move the words "in accordance with national laws, regulations or practice" to follow the words "alternative to such work". The amendment was withdrawn.
417. The Employer Vice-Chairperson introduced an amendment to delete the words "during pregnancy and nursing or involves a" and replace them with "or where an assessment has established a recognized or substantial". She subamended the text to replace "substantial" with "significant". The deletion from the original text had been based on the view that the prohibition should not be limited to the period specified. However, it had not been accepted by the Committee that all situations should be treated in the same way. The second part of the amendment took into account the fact that the risk had to be qualified in accordance with standard practice. The Worker Vice-Chairperson supported the idea of including risk assessment in the text. She proposed a subamendment to reinstate the words "during pregnancy and nursing", which was accepted by the Employer members. The Government member of Croatia questioned whether individual cases were covered in the revised text. The Worker Vice-Chairperson and the secretariat considered that the concerns expressed by the Government member of Croatia were covered in the revised text. The amendment was adopted as subamended by both the Employer Vice-Chairperson and the Worker Vice-Chairperson.
418. The Government member of the United Kingdom proposed an amendment to add at the end of the paragraph the following words: "whilst retaining the woman's right to return to her job as soon as it is safe for her to do so." The amendment sought to secure the return of the woman to her job after pregnancy. The Worker members supported the amendment as did the Government member of Poland. The Employer Vice-Chairperson opposed the amendment as lacking in precision. The Government member of Cyprus did not support the amendment and thought of it as superfluous. If leave was granted, it presumed that the work would be given back to the woman on her return. Temporary leave from work for safety and health reasons was addressed under another Point.
419. The Government member of the United States proposed a subamendment to add after the words "her job" the words "or an equivalent job", which was supported by the Government member of the United Kingdom. Following further support from the Government members, the amendment, as subamended, was adopted.
420. The Worker Vice-Chairperson submitted an amendment to insert after the words "such work" the words "without loss of pay". The Employer Vice-Chairperson opposed the amendment on the grounds that it placed a major and open-ended obligation on employers. Following lack of support from the Government members, the amendment was withdrawn.
421. The Employer Vice-Chairperson submitted an amendment to move the words "in accordance with national laws, regulations or practice" from after "(c) leave" to after the words "taken to provide", so as to ensure that national laws, regulations and practice applied to all the measures, such as adaptation and transfer. Following opposition from the Worker members and lack of support from the Government members, the amendment was withdrawn.
422. An amendment submitted by the Employer members to delete the words ", when such an adaptation is not feasible" and insert the words "or adaptation" between "such a transfer" and "is not feasible" was withdrawn, following opposition from the Worker members and lack of support from the Government members.
423. Point 22(2), as amended, was adopted.
Point 22(3)
424. As regards Point 22(3), an amendment submitted by the Government member of Spain to delete Point 22(3) was withdrawn.
425. An identical amendment to delete the same paragraph was submitted by the Government member of Canada, on the grounds that the establishment of a list might actually weaken protection, since some types of work were not mentioned. The Worker Vice-Chairperson opposed the amendment on the grounds that the words "such as" in the Office text made it clear that the list was not intended to be exhaustive. Following lack of support from the Employer members and the Government members, the amendment was withdrawn.
426. The Government member of France submitted an amendment to insert after the words "should be taken" the words "by the competent authority". The amendment, which he said was important for France, had two objectives: to strengthen protection against dangerous kinds of work, and to take account of the role played in some countries by mixed systems, such as the occupational safety and health service in his country, which was an independent authority in direct contact with pregnant women, which examined requests for transfers, or proposed such transfers itself. The Employer Vice-Chairperson opposed the amendment on the grounds that it would have no sense in the context of Point 22(2). Following lack of support from the Worker members, the amendment was withdrawn.
427. An amendment submitted by the Government member of Spain to insert after "certain types of work" the words "which entail risks for the health of the woman during the period of pregnancy and nursing" was withdrawn.
428. The Employer Vice-Chairperson submitted an amendment to add the word "unaccustomed" before the words "physical strain" on the grounds that not all work involving long periods of sitting or standing would produce physical strain of the type which would warrant assessment. The amendment was opposed by the Worker Vice-Chairperson, who said that even accustomed physical strain might constitute a risk during pregnancy. The Government members of Croatia and Poland also opposed the proposal and, following lack of support from Government members, the amendment was withdrawn.
429. The Worker Vice-Chairperson submitted an amendment to insert after the word "agent" the words "and radiation", which she subamended to include the word "harmful" before the word "radiation", with a view to clarifying the text. The Employer Vice-Chairperson referred to the ILO Code of Practice on Ambient Factors in the Workplace, which clearly distinguished between ionizing and non-ionizing radiation. Furthermore, she said that radiation was necessarily included in the words "biological, physical and chemical agents", radiation being a physical agent. Noting that the matter could be reconsidered during the second discussion, the Worker Vice-Chairperson withdrew her amendment and subamendment.
430. Point 22(3) was adopted without change.
431. Point 22 was adopted as amended.
New Point to be added after Point 22
432. The Worker members submitted an amendment to insert in the section entitled "Health protection" the following new Point:
Members should take measures to develop, in cooperation with international organizations and in consultation with the representative organizations of employers and workers, procedures and standards to assess the risks to reproductive health and safety of female and male workers.
She said that the amendment was a logical consequence of an earlier amendment from the Employer members that had been adopted. The Employer Vice-Chairperson said that she understood the concern behind the proposal, but believed that it was superfluous in the light of current practice in the field of occupational safety and health, and that it would cut across already well-coordinated international work. The amendment was supported by the Government member of Venezuela, but was opposed by the Government member of Croatia, who said that it went too far by including all reproductive health, and by the Government member of Finland, who said that although there should be risk assessment, it would be better if it was not required to be in consultation with international organizations. Following further opposition from the Government members, the amendment was withdrawn.
Point 23
Points 23(1) and 23(2)
433. An amendment was submitted by the Employer members, which they subamended to delete Points 23(l) and 23(2). This was intended to take account of an earlier decision by the Committee, and the amendment, as subamended, was supported by the Worker members, and adopted.
Point 23(3)
434. The Employer members submitted an amendment, which was identical to another amendment submitted by the Government member of France, to delete the paragraph. An identical amendment submitted by the Government member of the Netherlands was withdrawn.
435. In presenting her amendment, the Employer Vice-Chairperson said the Office text would allow women workers to accumulate and combine nursing breaks to suit their own convenience, in ways unrelated to the purpose of nursing the child, and which would be difficult to apply in practice. Such a provision would also discriminate against women who chose to bottle-feed, and might well be discriminatory against men, according to the jurisprudence of the European Court of Justice. Provisions had already been adopted regarding the frequency and duration of nursing breaks and further coverage was superfluous. The Worker Vice-Chairperson opposed the proposal for deletion, but said she was willing to consider subsequent amendments to the substance. The Government member of Guatemala also opposed the amendment to delete the paragraph, which in her view was very beneficial to women in workplaces without appropriate feeding facilities or in circumstances in which the woman had to travel long distances to reach such a facility. She pointed out that the paragraph might also be of benefit to employers unable for various reasons to provide nursing facilities. The Government member of Greece also opposed the amendment, as did the Government member of Kenya, who said that flexibility would be provided by the words "where practicable". The Government member of Cyprus said that legislation in her country already contained similar provisions which had proved their worth. Following further opposition from the Government members, the two amendments were withdrawn.
436. The Employer Vice-Chairperson submitted an amendment to insert after the words "Where practicable" the words "and with the agreement of the employer". The Worker Vice-Chairperson subamended the text to add the words "and the woman concerned" after the word "employer", which was accepted by the Employer members. The amendment, as subamended, was adopted.
437. Point 23(3), as subamended, was adopted.
438. Point 23 was adopted as amended.
Point 24
439. The Worker Vice-Chairperson submitted an amendment to delete the Point and replace by:
Provisions should be made for the establishment of facilities for nursing or day care, preferably outside the undertakings where the women are working; wherever possible provisions should be made for the financing or at least subsidizing of such facilities at the expense of the community or by compulsory social insurance.
She said that this provision had been taken from Recommendation No. 95 and provided a clearer wording. The Employer Vice-Chairperson opposed the amendment on the grounds that it went beyond the realm of maternity protection. She referred the Committee to Article 5 of Convention No.156, which addressed the broader aspect contained in the amendment. The Government member of Guatemala supported the amendment and noted that some countries had already established such provisions. The Government member of Cyprus endorsed the spirit of the proposal, but said that the matter could be examined during the second discussion. The Government member of Australia strongly opposed the amendment since it went far beyond nursing and included such elements as day care. Similar views were expressed by the Government member of Japan and, in the light of the discussion, the Worker members withdrew the amendment.
440. The Government member of Canada withdrew an amendment to delete the words "Provision should be made for the establishment of" and replace with "Employers should be encouraged to provide".
441. The Employer Vice-Chairperson submitted an amendment to insert the words "where practicable" at the beginning of the sentence, without which the provision would not be feasible in many circumstances for the reasons stated earlier in the discussion. The Worker Vice-Chairperson opposed the amendment, as did the Government members of Croatia and Guatemala. The Government members of New Zealand and the United States endorsed the amendment and, following further support from the Government members, the amendment was adopted.
442. Point 24(l), as amended, was adopted.
443. In the light of the discussion, an amendment submitted by the Worker members to insert a new paragraph under Point 24, as follows, was withdrawn:
(2) The equipment and hygienic requirements of the facilities for nursing and day care and the number and qualifications of the staff of the latter should comply with adequate standards laid down by appropriate regulations, and they should be approved and supervised by the competent authority.
444. Point 24, as amended, was adopted.
Point 25
Point 25(1)
445. The Government member of Canada submitted an amendment to delete the text of Point 25(l) and replace it with:
An employed woman should be entitled to parental leave during a period following the expiry of maternity leave. The employed father of the child should be entitled to parental leave during a period concurrent with or following the period of maternity leave.
The purpose of the proposal was threefold: to clarify that the parental leave could be shared and to cover circumstances in which the father took parental leave, on the return of the mother from the hospital, before all the maternity leave was used up. However, it was not his intention to increase the total amount of parental leave. The Worker Vice-Chairperson supported the amendment, which was opposed by the Employer members, on the grounds that the question of parental leave during a mother's maternity leave raised a number of complications regarding concurrent benefits. She said that the purpose of maternity leave was to allow a mother to recover, while parental leave had a different purpose, and was best addressed by other instruments. The Government member of Australia, as well as the Government member of Colombia, also spoke against the amendment. Following a lack of support from the Government members, the amendment was withdrawn.
446. The Worker Vice-Chairperson and the Government member of Greece submitted identical amendments to delete the word "or" and replace with the word "and". The Employer Vice-Chairperson said that the Office text clearly meant that the provision applied to one parent at a time, in line with the provisions contained in Recommendation No. 156, and that concurrent leave would give rise to many problems regarding social security and distribution of leave. The Government member of Australia said that he supported the idea of sharing the leave, but understood the concerns of the Employer members regarding the problems of concurrent leave. The Government member of Zimbabwe said that the word "or" might be necessary in the event of both parents being employed by the same employer. The Employer Vice-Chairperson subamended the text to replace the words "An employed woman or the employed father of the child" in the Office text with the words "Either parent". In response to a query from the Government member of Cyprus concerning the intention of the original amendment, the Worker Vice-Chairperson said that it had two concerns: parental leave should not replace maternity leave and whether it was taken consecutively or concurrently would be left to the discretion of the parents. Following this clarification, the Employer members withdrew their subamendment, reiterating their preference for the Office text and belief that this was also the preference of the Government members. Following lack of support from the Government members, the sponsors withdrew their amendments.
447. Point 25(1) was adopted unchanged.
Point 25(2)
448. In the light of the discussion, an amendment submitted by the Worker members to delete the words "the use and distribution of parental leave between the employed parents," was withdrawn.
449. Point 25(2) was adopted without change.
450. Point 25 was adopted without change.
Point 26
451. The Employer Vice-Chairperson submitted an amendment to delete the words "sickness, hospitalization or" and add a new sentence at the end as follows:
In the case of hospitalization of the mother after confinement, and where the mother cannot look after the child, the employed father of the child might be entitled to leave in accordance with national law and practice.
The intention of the amendment was to clarify and differentiate situations in which it might be appropriate for a father to use the balance of a mother's maternity leave. The Employer members were not opposed to the use of remaining maternity leave by the father after the death of the mother. However, sickness and hospitalization of the mother should not be considered as situations in which the father might use the balance of the mother's maternity leave, since the mother would herself still be using her maternity leave, whether or not she was sick or hospitalized. In the latter circumstance, many other types of leave might be available to the father, such as sick leave, parental leave or domestic leave. The Worker Vice-Chairperson subamended the proposal to include the words "sickness or" before the word "hospitalization" in the new sentence, on the grounds that sickness and hospitalization were two different cases and to replace the word "might" by "should". The Employer Vice-Chairperson said that although she could endorse the first proposal, the second subamendment was not acceptable since it was too prescriptive and took the instrument even further from the realm of maternity protection. The Worker members withdrew their two subamendments, whereupon the Government member of Poland subamended the text to produce the same wording as used in the two previous subamendments. The Government member of Cyprus said that she had no strong views as to the use of "might" or "should", but noted that the original amendment from the Employer members had already included the concept of action taken in accordance with national law and practice. The Government members of Bahrain, Kuwait, Saudi Arabia, Sudan, the Syrian Arab Republic and the United Arab Emirates had some concerns regarding a father's entitlement to take leave instead of the mother, and said that they were satisfied that flexibility was provided by the reference to national law and practice in the original amendment. In the light of the lengthy debate on the subject, and noting that the matter could be revisited in the second discussion, the Employer Vice-Chairperson withdrew her opposition to the subamendment, and the amendment, as subamended, was adopted.
452. Point 26, as amended, was adopted.
New Point after Point 26
453. An amendment was submitted by the Government member of Croatia to add a new Point 27 to read as follows:
27. All rights provided in the Convention connected to the postnatal part of maternity leave could be utilized under the same conditions by an adoptive mother or father if the child is under a certain age as determined by national legislation.
In presenting her amendment, the Government member of Croatia said that it was important not to discriminate between children, as might happen if rights were not available to adoptive parents. Her proposal used the word "could" to enhance its flexibility, and did not in any case require countries to provide such arrangements for adoptive parents. The Worker Vice-Chairperson strongly supported the amendment. The Employer Vice-Chairperson opposed the proposal, which she said referred to "all rights", which would include maternity benefits, hospitalization and medical care for women at the time of confinement, and the right to maternity leave, including postnatal leave, the main purpose of which was to allow the mother to recover. The only flexibility which the amendment permitted concerned the age of the child, while the use of the word "could" was not standard practice in such instruments and clearly suggested that Members were able to do something. Furthermore, the mandate entrusted to the Committee by the Governing Body concerned maternity protection at work, which in her view did not encompass such broader areas as those of adoption or the more general rights of a child.
454. The Government member of the United States said that maternity was a concept which included both biological and adoptive parents and she was concerned as to whether an adoptive mother who became ill would or would not be entitled to leave. The Government member of Guatemala supported the amendment since an adoptive mother needed some form of leave for psychological preparation for parenting and to help build a relationship with the child. The Government members of Bahrain, Kuwait, Saudi Arabia, Sudan, the Syrian Arab Republic and the United Arab Emirates opposed the amendment, which they said raised controversial issues and had little to do with the subject of maternity leave. The Government member of Cyprus also believed that it was not appropriate for inclusion in the instrument. The Government member of the Libyan Arab Jamahiriya recalled his earlier remarks about adoption and Islam, and emphasized that the instrument should be limited to pregnancy, confinement and nursing, but not cover adoption. The Worker Vice-Chairperson proposed a subamendment for the text to read as follows:
According to national law and practice, all rights provided in the Convention connected to the postnatal part of maternity leave should be extended as appropriate to an adoptive mother or father if the child is under a certain age as determined by national law and practice.
In presenting her subamendment, she said that the text was addressing narrower rights relating only to the postnatal period and reminded the Committee that Report V(l) referred to this issue, as well as many of the replies in Report V(2). The Government member of Croatia supported the subamendment and further emphasized that it had not been her intention to impose requirements on Members or to establish a link between the Convention and the Recommendation. The Government member of the United States supported the subamendment, as did the Government members of Colombia, Greece and Kenya.
455. The Employer Vice-Chairperson continued to express her opposition, and recalled her earlier remarks about the obligations of Members with respect to the provisions of Recommendations and the resulting reporting obligations. She added that the subamendment would extend all rights under the Convention, such as paid leave and additional leave, to an adoptive father, while the instrument did not extend those rights to the biological father. The Worker Vice-Chairperson said that the nature of a Recommendation and its contents were promotional in character. The Government member of Cyprus said that the words "all rights" were too broad. Rights to be given should be clearly specified. She could not accept the extension of protection, for instance, from unlawful dismissal to the adoptive father. The instruments under examination were intended to protect the natural mother. She could accept their extension to the adoptive mother, as legislation in Cyprus allowed. She suggested that the issue be revisited in the coming session. The Government member of the Netherlands endorsed that view. The Government member of Egypt also expressed her reservations about the proposal. The Government member of Germany, in noting that the proposal would not pose a problem in her country because of the provision made for educational leave, said that the discussion had clearly revealed the sensitivity and complexity of the issue. A similar view was expressed by the Government member of France, who said that the Committee had time before it for further reflection before the second discussion.
456. After a lengthy discussion, the text was put to a vote and the amendment, as subamended by the Worker Vice-Chairperson, was rejected by 13,800 votes in favour, 14,400 against, with 480 abstentions.
Adoption of the report, the Proposed
Conclusions
and a resolution
457. At its 19th sitting, the Committee adopted its report, subject to changes requested by various Members, as well as the Proposed Conclusions as presented at the end of the report. The Committee also adopted a resolution that an item entitled "Revision of the Maternity Protection Convention (Revised), 1952 (No.103), and Recommendation, 1952 (No. 95)" be included in the agenda of the next ordinary session of the International Labour Conference for second discussion with a view to the adoption of a Convention and a Recommendation.
458. Before the adoption of the report, the Reporter informed the Committee that, according to its mandate, the Drafting Committee had considered drafting questions which had been raised by the Committee and had dealt with other purely linguistic and stylistic issues in the Proposed Conclusions that did not affect their substance. The Drafting Committee had also ensured that the Proposed Conclusions were consistent with the body of international labour standards and had verified the concordance of the English and French versions. In order to avoid repetition, it had modified slightly Point 12(2) by deleting the introductory part of the sentence "to ensure that maternity does not constitute a source of discrimination in employment" which appeared also in Point 12(1). The Committee had reformulated the sentence to refer back to Point 12(1).
459. Three areas in the Proposed Conclusions had been the subject of extensive discussion in the Drafting Committee, but no changes had been made at that stage. The first concerned the words "notwithstanding Point 5", which had been added in Point 6(2). According to the representative of the Legal Adviser in the Drafting Committee, this presented two difficulties. First, Point 5 was a definitional provision. It defined "woman" and "child", whereas Point 6 dealt with scope. Point 6(2) did not refer to either women or children, but rather permitted the exclusion of categories of "workers or of enterprises", but not "women", from the scope of the Proposed Conclusions. Second and more generally, it was normal practice in international labour standards to define the scope of the instrument and then to provide for exclusions. The definition of "woman" as "any female person without discrimination whatsoever" therefore did not affect the possibility of exclusions from the scope of the proposed Convention, which was provided for in Point 6(1). In view of the agreement reached during the Committee's discussions, the Drafting Committee had not deleted the reference. The Office would further review and revise the text when preparing a draft Convention and Recommendation for the consideration of the Committee next year.
460. The second area concerned Point 8(1), in which the words "and/or" appeared. The representative of the Legal Adviser in the Drafting Committee had advised that the word "or" included the idea of "and" (unless phrased as "either ...or") and that international labour standards had always avoided the use of "and/or". Although no change of meaning would result from replacing "and/or" with "or", in light of the discussion in the Committee, the Drafting Committee did not change the text at that stage.
461. Finally, with regard to Point 17, the Committee had agreed to insert after "maternity leave" the phrase "(as referred to in Points 8(1) and 8(3) above)". That reference had been inserted to ensure that cash benefits would be provided during the extended portion of prenatal leave in the case where the childbirth was later than expected. However, the period of maternity leave was actually defined in Point 7(1), not in Point 8(1), which merely referred to a compulsory period of leave. It was considered in the Drafting Committee that an apparent error in the amendment might later lead to considerable confusion in the interpretation of the new instruments, especially considering that Point 17 addressed benefits, rather than the period of leave. In the view of the representative of the Legal Adviser in the Drafting Committee, the new phrase inserted in Point 17 was unnecessary to achieve what was intended and could be deleted. In light of the discussion in the Committee, the Drafting Committee chose not to change the text at that stage, other than to correct the error noted above. The Reporter concluded her remarks by thanking her fellow members of the Committee Drafting Committee for their skill, patience and cooperation.
462. The Employer Vice-Chairperson expressed her thanks to the Chairperson for ensuring a fair hearing and ensuring that all the points of discussion were fully on the table. The discussion had not always been easy to control due to the differing cultural, social, religious and economic backgrounds of the Committee members. She thanked the Reporter and the Drafting Committee for leaving the three points unchanged in the Proposed Conclusions, because these were important areas that had been subject to divergent viewpoints and wide discussion. In expressing her appreciation for the report, she noted that it was rare that a report which encapsulated such wide-ranging discussion could be adopted with so few amendments. The report would make the job of the Committee easier in the following year since all viewpoints were shown. Although the flexibility that the Employer members had hoped for had not been fully achieved, she looked forward to further discussion in the coming session.
463. Speaking on behalf of the Worker Vice-Chairperson, a representative of the Worker members observed that the work of the Committee had reflected recognition of the crucial importance of maternity protection in ensuring genuine equality for women and women's full participation in the labour market. The Committee had striven to bridge gaps in cultures and national priorities to achieve a forward-looking Convention which would allow the fruitful use of all human capital -- male and female. The Committee had made modest improvements with regard to nursing breaks and protection against discrimination. It had also made real efforts to address the imperatives of worker protection and the desire for flexibility. The Worker members wished to express their thanks to the Chairperson for her even-handedness, to the Reporter for drawing their attention to the points raised during the work of the Drafting Committee, to the Government members for having striven for consensus and win-win outcomes and for their willingness to adjust their views in the light of new information and analysis. She congratulated the Employer Vice-Chairperson for firmly reflecting the Employer members' position. Finally, she expressed appreciation for the work of the secretariat in supporting the efforts of the tripartite group.
464. The Government member of the Libyan Arab Jamahiriya, speaking as well on behalf of the African Government members of the Committee, observed that the preparation of a new Convention was important as it dealt with the protection of working mothers and their children. The mother gave life to the child who was the man of the future. He thanked the Chairperson for her chairmanship of this important Committee. Her election had been well deserved and she had steered the Committee towards consultation and consensus and had adopted voting only as a last resort, showing both leadership and the best human qualities. He further thanked the two Vice-Chairpersons who had defended their respective positions fairly, the Reporter for the preparation of the report and the secretariat who had always facilitated the work of the Committee.
465. In her closing remarks, the Chairperson noted that the Committee's discussions had demonstrated the complexity involved in achieving a new instrument. For this, it was essential to have cooperation from all sides, for which she expressed appreciation. She thanked the Committee for its support and expressed her hopes for a good result in the coming session.
466. The report of the Committee, the Proposed Conclusions and the resolution to place on the agenda of the next ordinary session of the Conference an item entitled "Revision of the Maternity Protection Convention (Revised), 1952 (No. 103), and Recommendation, 1952 (No. 95)" are submitted for consideration.
Geneva, 14 June 1999.
(Signed) A. Andersen,
Chairperson.
L. Samuel,
Reporter.
1. The modifications were as follows:
(a) 3 June: 191 members (82 Government members with 1,449 votes each, 46 Employer members with 2,583 votes each and 63 Worker members with 1,886 votes each);
(b) 4 June: 190 members (87 Government members with 2,596 votes each, 44 Employer members with 5,133 votes each and 59 Worker members with 3,828 votes each);
(c) 5 June (morning): 180 members (87 Government members with 2,132 votes each, 41 Employer members with 4,524 votes each and 52 Worker members with 3,567 votes each);
(d) 5 June (afternoon): 179 members (87 Government members with 520 votes each, 40 Employer members with 1,131 votes each and 52 Worker members with 870 votes each);
(e) 7 June: 180 members (88 Government members with 65 votes each, 40 Employer members with 143 votes each and 52 Worker members with 110 votes each);
(f) 8 June (morning and afternoon): 160 members (90 Government members with 403 votes each, 31 Employer members with 1,170 votes each and 39 Worker members with 930 votes each);
(g) 8 June (evening): 164 members (91 Government members with 186 votes each, 31 Employer members with 546 votes each and 42 Worker members with 403 votes each);
(h) 9 June: 164 members (91 Government members with 186 votes each, 31 Employer members with 546 votes each and 42 Worker members with 403 votes each);
(i) 10 June: 160 members (91 Government members with 86 votes each, 26 Employer members with 301 votes each and 43 Worker members with 182 votes each);
(j) 11 June: 150 members (91 Government members with 120 votes each, 24 Employer members with 455 votes each and 35 Worker members with 312 votes each);
(k) 14 June: 145 members (91 Government members with 120 votes each, 24 Employer members with 455 votes each and 30 Worker members with 364 votes each).
A. Form of the instruments
1. The International Labour Conference should adopt international standards revising the Maternity Protection Convention (Revised), 1952.
2. These standards should take the form of a Convention supplemented by a Recommendation.
B. Proposed Conclusions with a view
to a Convention
and a Recommendation
Preamble
3. The Preamble should note the need to revise the Maternity Protection Convention (Revised), 1952 and the Maternity Protection Recommendation, 1952, in order to recognize the diversity in economic and social development of member States and the development of the protection of maternity in national law and practice.
4. The Preamble should also recall that many international labour Conventions and Recommendations include provisions concerning maternity protection.
C. Proposed Conclusions with a view to a Convention
Content of the Proposed Convention
Definition
5. For the purposes of the Convention, the term "woman" should apply to any female person without discrimination whatsoever and the term "child" should apply to any child without discrimination whatsoever.
Scope
6. (1) The Convention should apply to all employed women.
(2) However, and notwithstanding Point 5, a Member might, after consulting the representative organizations of employers and workers concerned, exclude wholly or partly from the scope of the Convention limited categories of workers or of enterprises when its application to them would raise special problems of a substantial nature.
(3) A Member which avails itself of the possibilities afforded in the preceding paragraph should, in its first report on the application of the Convention under article 22 of the Constitution of the International Labour Organization, list the categories of workers or of enterprises thus excluded and the reasons for their exclusion. In its subsequent reports, the Member should describe the measures taken with a view to progressively extending the provisions of the Convention to these categories.
Leave
7. (1) On production of a medical certificate or appropriate certification as determined by national law and practice stating the presumed date of her confinement, a woman to whom the Convention applies should be entitled to a period of maternity leave of not less than 12 weeks.
(2) The period of leave referred to above should be specified by a Member in a declaration accompanying its ratification.
(3) A Member might subsequently deposit with the Director-General of the International Labour Office a further declaration extending the period of maternity leave.
8. (1) The leave referred to in Point 7(1) above should include a period of compulsory leave, the duration and distribution of which should be determined in each country after consulting the representative organizations of employers and workers, with due regard to the protection of the health of mother and/or child.
(2) On the basis of a medical certificate, additional leave should be provided before or after the maternity leave period in case of illness, complications or risk of complications arising out of pregnancy or confinement. The maximum duration of such leave might be fixed by the competent authority.
(3) The pre-natal portion of leave should be extended by any period elapsing between the presumed date of confinement and the actual date of confinement, without reduction in any compulsory portion of post-natal leave.
Benefits
9. (1) Cash and medical benefits should be provided, in accordance with national laws and regulations or other means referred to in Point 15 below, to women who are absent from work on maternity leave or additional leave (as referred to in Point 8(2) above).
(2) Cash benefits should 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.
(3) Cash benefits should be provided either:
(a) at a rate which should not be less than two-thirds of the woman's previous earnings or of such of those earnings as are taken into account for the purpose of computing benefits; or
(b) by means of a flat-rate benefit of an appropriate amount.
(4) Where a woman does not meet the conditions to qualify for cash benefits under national laws and regulations or other means referred to in Point 15 below, she should be entitled to adequate benefits out of social assistance funds, subject to the means test required for such assistance.
(5) A Member should ensure that the conditions to qualify for cash benefits are such that they do not result in excluding an unduly large percentage of women to whom this Convention applies.
(6) Medical benefits should include pre-natal, confinement and post-natal care, as well as hospitalization care, when necessary.
10. (1) A Member whose economy and social security system are insufficiently developed should be deemed to be in compliance with Point 9(3) above if cash benefits are provided at a rate no lower than the benefits payable for sickness or temporary disability in accordance with national laws and regulations or other means referred to in Point 15 below.
(2) A Member which avails itself of the possibilities afforded in the preceding paragraph should, in its first report on the application of the Convention under article 22 of the Constitution of the International Labour Organization, explain the reasons therefor and indicate the rate at which cash benefits are provided. In its subsequent reports, the Member should describe the measures taken with a view to progressively raising the rate of benefits.
Employment protection and non-discrimination
11. It should be unlawful for an employer to terminate the employment of a woman who is pregnant, absent on maternity leave or additional leave (as referred to in Point 8(2) above), and during a period following her return to work, to be prescribed by national laws and regulations, except on grounds unrelated to the pregnancy or childbirth and its consequences or nursing. The burden of proving that the reasons for dismissal are unrelated to pregnancy or childbirth and its consequences or nursing should rest on the employer.
12. (1) A Member should adopt appropriate measures to ensure that maternity does not constitute a source of discrimination in employment.
(2) Measures referred to in the preceding paragraph should include a prohibition from requiring a test for pregnancy or a certificate of such a test when a woman is applying for employment, except for work which under national laws or regulations is prohibited or restricted for pregnant or nursing women or which is prejudicial to the health of the woman and child.
Provisions for nursing mothers
13. (1) A woman should be entitled to daily break(s) to nurse her child, which should be counted as working time and remunerated accordingly.
(2) The frequency and length of nursing breaks, pursuant to national law and practice, should be adapted to particular needs on the presentation of a medical certificate or other appropriate certification as determined by national law and practice.
Periodic review
14. A Member should examine periodically, in consultation with the most representative organizations of employers and workers, the appropriateness of extending the period of maternity leave or of increasing the amount or the rate of benefits referred to in Points 7(1) and 9(3) above.
Implementation
15. The Convention should be implemented by means of laws or regulations, except in so far as effect is given to it by other means such as collective agreements, arbitration awards or court decisions, or in any other manner as may be consistent with national practice.
D. Proposed Conclusions with a view to a Recommendation
Content of the Proposed Recommendation
Maternity leave
16. (1) Members should endeavour to extend the period of maternity leave to at least 16 weeks.
(2) Provision should be made for an extension of the maternity leave in the event of multiple births.
(3) Measures should be taken to ensure that, to the extent possible, the woman should be entitled to choose freely the time at which she takes any non-compulsory portion of her maternity leave before or after childbirth.
Maternity benefits
17. Where practicable, and after consulting the representative organizations of employers and workers, the cash benefits to which a woman is entitled during maternity leave (as referred to in Points 7(1) and 8(3) above) and additional leave (as referred to in Point 8(2) above) should be raised to the full amount of the woman's previous earnings or of such of those earnings as are taken into account for the purpose of computing benefits.
18. To the extent possible, the medical benefits (as referred to in Point 9(6) above) should include:
(a) care given in a doctor's office, at home or in a hospital or other medical establishment by a general practitioner or a specialist;
(b) care given by qualified midwives or other maternity services at home, in hospital or other medical establishments;
(c) maintenance in hospitals or other medical establishments;
(d) any necessary pharmaceutical and medical supplies, examinations and tests prescribed by a medical practitioner or other qualified person; and
(e) dental and surgical care.
Financing of benefits
19. The cash and medical benefits should be provided through compulsory social insurance, public funds or in a manner determined by national law and practice.
20. Any contribution due under compulsory social insurance providing maternity benefits and any tax based upon payrolls which is raised for the purpose of providing such benefits, whether paid both by the employer and the employees or by the employer, should be paid in respect of the total number of men and women employed, without distinction of sex.
Employment protection and non-discrimination
21. A woman should be entitled to return to her former position or an equivalent position paid at the same rate at the end of her maternity leave, the period of which should be considered as a period of service for the determination of her rights.
Health protection
22. (1) The employment of a woman on work defined by the competent authority as prejudicial to her health or that of her child should be prohibited during pregnancy and up to three months after childbirth and longer if the woman is nursing her child.
(2) Where the woman's work is the subject of a prohibition of employment during pregnancy and nursing or where an assessment has established a recognized or significant risk to her health or that of the child, measures should be taken to provide, on the basis of a medical certificate as appropriate, an alternative to such work in the form of: (a) an adaptation of conditions of work; (b) a transfer to another post, when such an adaptation is not feasible; or (c) leave, in accordance with national laws, regulations or practice, when such a transfer is not feasible. The woman retains her right to return to her job or an equivalent job as soon as it is safe for her to do so.
(3) Measures referred to in paragraph 2 above should be taken in respect of certain types of work such as:
(a) arduous work involving the manual lifting, carrying, pushing or pulling of loads;
(b) work involving exposure to biological, chemical and physical agents which represent a reproductive health hazard;
(c) work requiring special equilibrium;
(d) work involving physical strain due to prolonged periods of sitting or standing, or to extreme temperatures, or vibration.
Provisions for nursing mothers
23. Where practicable and with the agreement of the employer and the woman concerned, it should be possible to combine the time allotted for daily nursing breaks to allow a reduction of hours of work at the beginning or at the end of the working day.
24. Where practicable, provision should be made for the establishment of facilities for nursing under adequate hygienic conditions.
Related types of leave
25. (1) An employed woman or the employed father of the child should be entitled to parental leave during a period following the expiry of maternity leave.
(2) The period during which parental leave might be granted, the length of the leave and other modalities, including the payment of parental benefits, the use and distribution of parental leave between the employed parents, should be determined by national laws or regulations or in any manner consistent with national practice.
26. In the case of the death of the mother before the expiry of post-natal leave, the employed father of the child should be entitled to take leave of a duration equal to the unexpired portion of the post-natal maternity leave. In the case of sickness or hospitalization of the mother after confinement and where the mother cannot look after the child, the employed father of the child should be entitled to leave in accordance with national law and practice.
Resolution
to place on the agenda of the next
ordinary session of the Conference an item entitled
"Revision of the Maternity Protection Convention (Revised), 1952
(No. 103), and Recommendation, 1952 (No. 95)"
The General Conference of the International Labour Organization,
Having adopted the report of the Committee appointed to consider the fifth item on the agenda;
Having in particular approved as general conclusions, with a view to the consultation of Governments, proposals for the Revision of the Maternity Protection Convention (Revised), 1952 (No. 103), and Recommendation, 1952 (No. 95),
Decides that an item entitled "Revision of the Maternity Protection Convention (Revised), 1952 (No. 103), and Recommendation, 1952 (No. 95)" shall be included in the agenda of its next ordinary session for second discussion with a view to the adoption of a Convention and a Recommendation.
Updated by HK. Approved by RH. Last update: 26 January 2000.