87th Session |
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Report V(2) |
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Maternity protection at work |
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Revision of the Maternity Protection Convention (Revised), 1952 (No. 103), and Recommendation, 1952 (No. 95) |
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Fifth item on the agenda |
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International Labour Office Geneva |
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ISBN 92-2-110814-7 |
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Replies received and commentaries
The Governing Body of the International Labour Office, at its 268th Session (March 1997), decided to place on the agenda of the 87th Session (1999) of the International Labour Conference the revision of the Maternity Protection Convention (Revised), 1952 (No. 103), and its accompanying Recommendation, 1952 (No. 95).
The question will be dealt with by the double discussion procedure. In accordance with Article 39 of the Standing Orders of the Conference, which deals with the preliminary stages of the double discussion procedure, the Office drew up a preliminary report,(1) intended to serve as the basis for the first discussion of this question. After briefly summarizing the background to the Governing Body's decision, the report examines the law and practice on the subject in various countries. This report, accompanied by a questionnaire, was sent to the governments of member States of the ILO, which were invited to reply to the questionnaire and send their replies to the Office no later than 30 June 1998.
At the time of drawing up this report, the Office had received replies from the governments of the following 107 member States:(2) Algeria, Angola, Argentina,(3) Australia, Austria, Bahrain, Barbados, Belarus, Belgium, Benin, Botswana, Brazil, Bulgaria,(4) Cambodia, Cameroon, Canada, Central African Republic, Chad, Chile, China, Colombia, Comoros, Congo, Costa Rica, Croatia, Cuba, Cyprus, Czech Republic, Denmark, Ecuador, Egypt, El Salvador, Estonia, Ethiopia, Finland, France, Germany, Ghana, Greece, Guyana, Honduras, Hungary, India, Indonesia, Islamic Republic of Iran, Italy, Jamaica,(5) Japan, Jordan, Kenya, Republic of Korea, Kuwait, Latvia, Lebanon, Lithuania, Luxembourg, Malaysia, Mali, Mauritius, Mexico, Republic of Moldova, Morocco, Mozambique, Myanmar, Namibia,(6) Netherlands, New Zealand, Nicaragua, Niger, Norway, Oman, Pakistan, Papua New Guinea, Peru, Philippines,(7) Poland, Portugal, Qatar, Romania, Russian Federation, San Marino, Saudi Arabia, Seychelles, Singapore, Slovakia, Slovenia, South Africa, Spain, Sri Lanka, Suriname, Sweden, Switzerland, Syrian Arab Republic, Tajikistan, Thailand, Togo, Trinidad and Tobago, Tunisia, Turkey, Ukraine, United Arab Emirates, United Kingdom, United States, Uruguay, Venezuela, Viet Nam, Zimbabwe.
The attention of governments was drawn to article 39, paragraph 1, of the Standing Orders of the Conference, in which they are requested "to consult the most representative organizations of employers and workers before finalizing their replies". Governments were asked to indicate which organizations had been so consulted.
The Governments of the following member States reported that the employers' or workers' organizations had been consulted or involved in the drafting of the replies: Algeria, Argentina, Australia, Austria, Bahrain, Barbados, Belarus, Botswana, Brazil, Cambodia, Canada, Chile, Colombia, Comoros, Croatia, Cyprus, Denmark, Ecuador, Estonia, Finland, Ghana, Guyana, Hungary, Islamic Republic of Iran, Italy, Jamaica, Japan, Jordan, Kenya, Republic of Korea, Kuwait, Latvia, Luxembourg, Malaysia, Mauritius, Myanmar, Netherlands, New Zealand, Nicaragua, Norway, Pakistan, Peru, Philippines, San Marino, Saudi Arabia, Seychelles, Slovakia, Slovenia, Sri Lanka, Sweden, Tajikistan, Togo, Turkey, Ukraine, Venezuela, Viet Nam, Zimbabwe.
The Governments of the following member States included in their replies the opinions of employers' or workers' organizations: Barbados, Brazil, Czech Republic, Denmark, Finland, Jamaica, Republic of Korea.
The Governments of the following member States sent separately the replies from employers' or workers' organizations, and in some instances those replies were received directly at the Office: Argentina, Australia, Austria, Azerbaijan, Belgium, Benin, Brazil, Canada, Chile, Colombia, Cyprus, Dominica, Ecuador, Egypt, Estonia, Ethiopia, France, Germany, Ghana, Honduras, India, Indonesia, Iraq, Italy, Japan, Jordan, Lithuania, Malaysia, Mauritius, Morocco, Mozambique, Namibia, Netherlands, New Zealand, Pakistan, Peru, Poland, Portugal, Romania, South Africa, Spain, Suriname, Switzerland, Trinidad and Tobago, Turkey, United States, Uruguay, Venezuela, Zimbabwe.
In accordance with article 39, paragraph 1, of the Standing Orders of the Conference, the replies from the most representative employers' or workers' organizations, are reproduced or mentioned in this report.
If the Conference decides that it is advisable to adopt one or more international instruments, the Office will draw up, on the basis of the conclusions adopted by the Conference, one or more draft instruments to be submitted to governments. It will then be for the Conference to make a final decision on the subject at a future session.
This report has been drawn up on the basis of the replies received, the substance of which is given in the following pages.(8) Brief commentaries identify the major issues for consideration by the Conference. The Proposed Conclusions appear at the end of the report.
REPLIES RECEIVED AND COMMENTARIES
This section contains the substance of the general observations made by governments and of their replies to the questionnaire, as well as of replies received from employers' and workers' organizations.
After examining the general observations, each question is reproduced and followed by a list indicating the governments that replied to it, grouped in accordance with the nature of the replies (affirmative, negative or other). Where a government submitted observations qualifying or explaining its reply, and where observations have been received from employers' or workers' organizations, the substance of each observation is given, in alphabetical order of countries, after the above-mentioned list. Observations that are the equivalent of a simple affirmative or negative reply are not reproduced unless they are replies of workers' or employers' organizations which differ from the replies of their respective governments. Where a government deals- with several questions in one reply, the substance of its reply is given where appropriate.
Some governments gave information on their national law and practice. This information, while most useful for the work of the Office, has not been reproduced unless it is essential to an understanding of the relevant reply.
The summary of the observations on each question is followed by a brief Office commentary referring to the relevant Point (or Points) of the Proposed Conclusions at the end of this report.
General observations
Australia. Australia favours a flexible, facilitative approach rather than a prescriptive approach when setting standards for maternity leave. Fixing specific minimum standards would be inappropriate. The new Convention should be rights-based as compared to the current Convention which is protectionist-based. Australia supports a "promotional" approach to the revision of Convention No. 103 which does not set a definite objective to be attained immediately, but formulates a general policy to be followed by each country with due regard to its particular circumstances. The Convention would require each ratifying member State to declare and pursue a national policy designed to promote, by methods appropriate to national conditions and practice, maternity leave policy. The policy should take due account of the stage and level of economic development and the relationship between maternity protection objectives and other social and economic objectives. In the application of the Convention the representatives of persons affected by the measures taken would be consulted concerning maternity protection policies. Issues such as the type, quantum and mechanisms for provision of maternity leave should be left to individual member States to determine. The Recommendation would provide suggestions as to implementation and address higher standards for those who want a higher goal than the minimum standard.
Austria. Austrian Chamber of Commerce (WKÖ): The subject is of no relevance from the Austrian point of view. For this reason, the WKÖ is against the adoption of another international instrument. The requirements indicated in the questionnaire are more than met in Austria.
Manufacturers' Association (IV): There is no basic objection to a revision of the Convention to make it more flexible and adaptable to national conditions. However, from the Austrian point of view, any revision resulting in an even greater burden on enterprises and detrimental to employment opportunities for women would have to be rejected. Reference is made here in particular to Article 4(8) of the Convention, which is not implemented sufficiently widely.
Belgium. In considering maternity protection, it is important to consider the repercussions of regulations concerning equality of treatment between men and women on the labour market. The length of maternity leave should not be too long, otherwise there is a risk of negative consequences on women's employment, on hiring and on the level of remuneration during leave.
National Labour Council (CNT): There is no reason to call into question the basic principles of Convention No. 103. The revised instrument(s) should be more flexible concerning the means employed to reach the goals, but without lowering the level of protection provided in Convention No. 103. Excessive detail should be avoided. When benefits are financed exclusively through employer contributions, as in Belgium, the level of contribution should not be set or raised in a manner which would have negative repercussions on employment. Overly protective or inadequate provisions could compromise equality of opportunity for women in the labour market. ILO instruments should be conceived so as to encourage member States to examine their current situation compared to the goals defined in the instruments with a view to achieving progress towards these goals, according to their national circumstances. Provisions in the revised instrument(s) should not impede the application or ratification of other international instruments, such as the Discrimination (Employment and Occupation) Convention, 1958 (No. 111), the Part-time Work Convention, 1994 (No. 175), and the Home Work Convention, 1996 (No. 177).
Czech Republic. Czech-Moravian Chamber of Trade Unions (MK OS): The Convention should not be built on minimal requirements alone; it must serve as a standard for the first half of the next century.
Denmark. The Government supports the revision of Convention No. 103 and Recommendation No. 95 in light of women's ever-increasing participation in the labour market. In the final declaration of the United Nations Women's Conference (Beijing, 1995), the removal of discriminatory employment practices based on women's reproductive roles and functions was emphasized. Women's reproductive role is one of the most significant reasons for the lack of equality on the labour market. Special measures are required to reduce these disadvantages as much as possible. A revised Convention should not be too detailed, but should lay down basic rights for protection of motherhood as a framework to be filled out by the member States themselves. Financial support of the mother must be ensured during maternity leave and a safe working environment provided for pregnant and nursing women.
Germany. Article 4(8) of Convention No. 103, relieving the employer of all liability for the cost of benefits, prevented Germany from ratifying the Convention. The avoidance of such a provision is to be welcomed.
Confederation of German Employers' Associations (BDA): Adequate maternity protection is a prerequisite for women's participation in the world of work. Because up-to-date, pertinent international maternity protection standards may provide valuable guidance for many countries, we endorse the proposal to revise Convention No. 103 and Recommendation No. 95. The purpose of the revision should be above all to eliminate unnecessary detail and inflexibility from these instruments which, once revised, should focus exclusively on the definition of minimum standards in the essential areas of maternity protection. These minimum standards should be formulated in such a way that they are attainable, with a reasonable degree of effort, throughout the world, particularly in the developing countries. They should be as flexible as possible to allow implementation through national law. The revision should not dispense with important provisions which retain their relevance, in particular Article 4(8) of the Convention. Placing the burden of costs for maternity protection on individual employers would effectively reduce opportunities for women in the labour market and would be counter to the major objective of promoting employment.
Italy. Many of the provisions of Recommendation No. 95 should be included in the new text of the Convention. Consideration should be given to the protection of the reproductive health of the couple. Principles of the protection of working mothers should be defended and the minimum elements of protection of reproductive health introduced. This should include reference to the assessment of risks; the specific obligations of the employer and the competent institutions to provide information respecting risks to the foetus and both members of the couple; and the establishment of specific recommendations on prevention.
General Confederation of Industry (CONFINDUSTRIA): Despite the affirmed intention of the ILO to provide greater flexibility in the new instruments, such an approach is not evident in the questionnaire. The proposed approach would make wide ratification difficult. A much wider area should have been reserved for bargaining at the national level. Texts should be more flexible, realistic and effective to avoid once again creating standards which are difficult to adapt to the reality of countries where the legislative framework and collective bargaining are still far from those of the most advanced countries. In any case, for advanced countries, the new international instruments do not provide any improvement over current maternity protection at work, which is already strong and widespread. Above all, the risk of creating standards which are of little use to countries which need them and superfluous for others must be avoided.
Japan. It is important for each country to furnish conditions to ensure that women's maternity is respected in the workplace, and that they can give birth to their children with peace of mind while remaining employed. It seems worthwhile to adopt new international instruments that will facilitate the provision of working conditions relating to maternity protection by each Member in accordance with their various national situations. The aim of this revision is to adopt instruments that are easy to apply and to avoid the inclusion of provisions that are too detailed.
Japan Federation of Employers' Associations (NIKKEIREN): Revised instruments should respond to the current demands of the changing environment impinging on women's labour. The content of the existing instruments must be reexamined to determine why more member States have not ratified the Convention. A more realistic and flexible approach must be adopted so that more countries might ratify the new instrument and use it as a reference. Significant problems we see with the present instruments notably include: Articles 3(6), 4(6) and 5(2) of Convention No. 103 and Paragraphs 2(1), 3(2), 5(1), 5(4) and 5(5) of Recommendation No. 95 which are discussed in our comments to specific questions below. The content and scope of maternity protection must be clarified and explained in the revised Convention and Recommendation. Otherwise it will be difficult to examine the appropriateness of provisions. Maternity protection should be limited to protection from discriminatory treatment in employment based on reproductive roles rather than protection of women. Excessive protection works against the interests of women and may lead to discrimination.
Japanese Trade Union Confederation (JTUC-RENGO): The strengthening of maternity protection is a prerequisite to the promotion of equality between men and women in employment. Maternity protection must not be used to justify any unfavourable treatment. The conclusions of the United Nations Fourth World Conference on Women (Beijing, 1995) and the United Nations Conference on Population and Development (Cairo, 1994) should be taken into consideration in revising the Convention.
Portugal. The protection of maternity is one of the conditions governing equality at work between male and female workers. Although encompassed in the constitutions of many countries and in international instruments, equality is far from being fully achieved. One reason for the low level of ratification of Convention No. 103 is its lack of flexibility, in particular with respect to its scope, to the mandatory nature of postnatal leave and to the total prohibition of dismissal. Nevertheless, many countries have adopted equivalent or more favourable standards, and have taken further steps not contemplated by Convention No. 103. New maternity protection standards ought to be adopted which can be widely accepted and which take into account recent progress. The instrument or instruments should be flexible and up to date. Their scope should take into account the concern expressed in the resolution on Equal Opportunities and Equal Treatment for Men and Women in Employment, adopted at the 71st Session of the International Labour Conference, that "a gradual extension of maternity protection to women in all sectors of activity and enterprises of all sizes, including women who are casual, temporary, part-time, subcontract and home-based workers as well as self-employed and family workers" should be examined as a matter of priority, due account being taken of national conditions.
Confederation of Portuguese Business (CCP): The CCP is not in favour of the revision of Convention No. 103 and Recommendation No. 95 for the following reasons: (1) a Convention or Recommendation should contain only minimum principles to allow ratification by the countries concerned; (2) each country should be free to set the legislative framework most suited to its economic and cultural conditions; (3) Portuguese legislation amply covers maternity in employment, and there is a National Commission to ensure equality in work and employment; (4) maternity is an undoubted social benefit which should be protected, so long as it does not become a factor of inequality at work. Protection of maternity should not become an "advantage" for certain workers.
Singapore. The present maternity provisions in our national law which provide paid maternity leave, the possibility for extended unpaid leave, employment protection and tax and financial incentives, have served us well, even though some are less favourable than those provided in the Convention. We are of the view that there is no necessity to revise the Convention. Providing more generous maternity benefits and greater protection for women, such as nursing facilities, would in the long run work to women's disadvantage. Employers may discriminate against women in employment if they find that employing women results in higher costs and greater rigidity in the management of their resources. In addition, enhancing the maternity leave would place an unnecessary financial burden on employers, who not only have to pay for the women's absence but also pay for relief staff or overtime to cover their duties during the absence. Considering that the vast majority of employers are small firms, this added cost burden would be a deterrent to the employment of women. Furthermore, given the small pool of our local workforce and our tight labour market, increasing the time away from work of working mothers and the added costs of longer maternity provision are counter-productive.
Sweden.A proposed second part to the Convention, containing provisions on parental leave
In order to respond more adequately to the demands of present-day working parents, the ILO, in a second part of the new Convention, should move one step further away from a purely maternal to a parental benefit. One of the best ways of supporting families is by enabling both parents to be gainfully employed. The ILO should therefore enlarge the scope of the Convention so as to include the family's combined responsibility for its children.
The ILO Workers with Family Responsibilities Convention (No. 156) and its accompanying Recommendation (No. 165) assume both men and women to have such responsibilities. Shared parental responsibility is specifically addressed in ILO Report V(1): Maternity protection at work. A revised Convention on maternity protection ought, similarly, to deal with shared parental responsibility for children in the family. The Convention could be constructed in several parts which countries can ratify as and when possible. The intention of this arrangement, i.e. gradual accession to the two parts of the Convention, is to make possible widespread ratification and also to make the Convention relevant to countries with different degrees of protection in connection with pregnancy and childbirth.
Parental benefit
The primary aim of a parental benefit is consideration for the child's best interests. A further aim is equality between the sexes, which in turn affects employers, employees and society at large. Responsibility for the children will be broadened by introducing the possibility of both parents taking leave of absence in connection with childbirth. This will also provide real opportunities for influencing and developing equality between the sexes. A parental benefit highlights the duty of fathers to participate in the care and supervision of children in the family.
Qualification/Scope
All employees should have access to parental benefit. The benefit system should also include self-employed persons, students and unemployed persons, as far as possible.
Protection of employment
Job security for persons availing themselves of the benefit must be guaranteed. In addition, on returning to work the parent should be assured of the same or similar duties as before the leave.
Duration
The child's best interests and its need for contact with and proximity to its parents are of the utmost importance. The duration of leave has a bearing on the ability of parents to return to work. The number of days' leave available for a child could be equally divided between the parents or be left unallocated, with the parents free to share it as they please. A certain amount of time should be specially reserved for fathers, so as to encourage them to take their share of parental benefit. It should not be transferable to the mother.
Cash benefits
A wider Convention, based on the responsibility of both parents for their children, should also address cash benefits. Since most working parents are dependent on their earnings, parental leave should be combinable with cash benefits.
Flexibility
To further facilitate the combination of gainful employment and family life, parents should be given the option of shorter working hours while their children are small. A wider Convention should also deal with leave of absence, paid or unpaid, for care of a sick child. In addition, fathers should be specially entitled to "paternity leave", i.e. time off work, simultaneously with the mother, in connection with childbirth, so as to be able to welcome and look after the new baby or to look after other children in the family when the new baby arrives.
Switzerland. Switzerland is currently unable to ratify Convention No. 103. A draft law regarding maternity insurance is currently being examined in Parliament.
Confederation of Swiss Employers (UPS): It is not surprising that Convention No. 103 was poorly ratified given its rigidity and the fact that the standards of protection are too high for an international instrument, notably a minimum of 12 weeks of leave. The ILO questionnaire appears to favour a further extension of protection, especially in the section regarding a Recommendation, which proposes a sharing of parental leave between the two employed parents. Only a flexible and far lighter instrument at best a Recommendation could have any chance of acceptance at the international level. All our responses to questions regarding the content of a possible Convention are given with a view to a possible new Recommendation. As for the questions relating to the content of a possible Recommendation, we will not enter into the discussion of these points. The extension of leave to 14 weeks, the remuneration of nursing breaks and the parental leave proposals are totally unrealistic, especially at the international level. Such questions should be settled between the social partners through collective agreements or at the enterprise level. The UPS does not support the preparation of any new international instrument aimed at extending benefits. The Swiss Association for Visual Communication (VISCOM) prefers not to enter into discussions regarding the revision. The Swiss Employers' Association for the Machine Industry (ASM) notes that solutions worked out between the social partners are clearly preferable to legal constraints imposed from the outside. If maternity protection really is considered a necessary condition for equality in employment, this objective (equality) would be better achieved by facilitating the professional integration of women for example, by adjusting school schedules to fill the day rather than by creating additional social benefits.
Federation of Swiss Salaried Employees' Associations (VSA): We support the intention to revise Convention No. 103 with a view to producing a broader, more open instrument which might be ratified by more countries. However, the basic protection afforded by the instrument should not be diluted. The revised Convention should contain certain ground rules regarding financial aspects, rather than off-loading these to the non-binding Recommendation. Protection of mothers and pregnant women at work is one of the most basic elements in the overall protection for employees.
South Africa. Business South Africa (BSA): Having children is making a choice in life and sacrifices are invariably necessary. Over time, it has become accepted that many of the sacrifices related to maternity protection and raising children in general have to be borne by the employer and by co-workers who have to stand in for those on maternity leave. The question of equity between employees with and without children should be addressed.
Trinidad and Tobago. The Government accepts and supports the objectives and principles of maternity protection, but it has not been able to ratify Convention No. 103. The recently adopted Maternity Protection Act, 1998, provides a first attempt at legislative support for maternity protection. It is hoped that future developments will enable full accord to be made with the existing Convention.
The large number of replies to the questionnaire reflects the importance of the subject-matter for member States as well as their interest in revised standards on maternity protection. The governments of 107 member States replied and there was an almost equal number of additional replies from employers' and workers' organizations. The general observations indicate the desirability and timeliness of revised standards on maternity protection which would take into account the increased participation of women in the labour market and the discrimination women still face in employment due to their reproductive role. Some also noted that there have been improvements in maternity protection in national law and in practice which were not envisaged in the Maternity Protection Convention (Revised), 1952 (No. 103). Many replies reflected the concern to make such protection more effective by taking account of new forms of financing maternity benefits.
As reported under questions (1) and (2), a vast majority favoured the adoption of a Convention supplemented by a Recommendation. A few governments and employers' and workers' organizations, however, opposed or questioned the necessity of adopting new standards on maternity protection. They cited various reasons: their economic situation was such that they would not be able to meet new obligations; their existing legislation was adequate in providing protection and benefits; or Convention No. 103 was still relevant and urged its wider ratification. One employers' organization stated that the new instrument should only take the form of a Recommendation.
Many replies emphasized that the new standards on maternity protection should be confined to broad principles and be flexible enough to accommodate different national situations and levels of development. They should lay down the basic rights for maternity protection, leaving the mechanisms for applying them to national law and collective bargaining. One government suggested specifically that the new instrument should follow the approach adopted in the Equal Remuneration Convention (No. 100) and the Discrimination (Employment and Occupation) Convention (No. 111) which require ratifying member States to declare and pursue a national policy designed to promote, by methods appropriate to national conditions and practice, maternity leave. One employers' organization specifically cautioned against the risk of creating new standards that will not be useful to countries which need them while being superfluous for others. From another perspective, one Member proposed a Convention in two parts to make wider ratification possible, leaving the option for countries to ratify only one part or both. Another Member considered that the focus of the new instruments should be rights-based rather than protection-based and as such should consider the use of a taxation-funded means tested benefit scheme which could equally or more efficiently deliver income support to those women who are in need of such support.
While there was wide support for new instruments which provide greater flexibility, some governments and employers' and workers' organizations underlined that the level of protection contained in certain provisions of Convention No. 103 retained their relevance and should not be changed or lowered.
A few replies, while acknowledging the need for maternity protection, expressed reservations about adopting overly protective standards which could result in further discrimination against women.
Although the points raised in these observations are addressed as appropriate under the relevant specific questions, it might be helpful to make a few general observations at the outset.
As drafted, the Proposed Conclusions retain the basic principles of maternity protection: the right to leave, the right to income replacement during leave (cash benefits), medical benefits, and employment protection. The main differences between Convention No. 103 and the Proposed Conclusions are highlighted below.
(a) Methods of application: Broader possibilities are provided with regard to the means of application in response to many replies from member States, many of whom indicated that this would enable wider ratification.
(b) Leave: While the minimum duration of leave is the same, provision is made for ratifying Members to undertake an obligation for a longer period (Points 7(2) and (3)). Regarding compulsory leave, the new proposed point does not specify the duration and distribution of such leave (Point 8(1)).
(c) Cash benefits: The Proposed Conclusions take account of the different approaches used in member States (Point 9(3)). While maintaining that cash benefits should be provided as specified in Convention No. 103, the Proposed Conclusions do not, however, specify how benefits should be paid nor who should be responsible for such payment.
(d) Employment protection and non-discrimination: Protection against dismissal is strengthened as the period is not only limited to maternity leave but also covers pregnancy and a period following a woman's return to work (Point 11). A new proposed point was added to ensure that maternity does not result in discrimination in employment (Point 12).
Taking account of the replies from many Members, the Office also proposed a simpler text for the scope of the instruments (Point 6).
An issue raised in the Questionnaire (Question 28) and in the general observations was whether provisions in the new instruments on maternity protection would include provisions for parental leave. The Office notes that other types of leave such as parental, paternity and adoption leave are provided in several member States to assist parents in adapting to the arrival of a child and to allow them to find a better balance between family and work responsibilities. However, the Office has drafted the Proposed Conclusions from the point of view that the new proposed instruments would focus on protection for women during their pregnancy and recovery from childbirth, that is on child-bearing rather than on child-rearing. In addition, it takes account of the fact that parental leave is provided for in the Workers with Family Responsibilities Recommendation (No. 165), 1981.
I. Form of the international instrument
or instruments
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Should the International Labour Conference adopt a Convention revising the Maternity Protection Convention (Revised), 1952 (No. 103)? |
Total number of replies: 104.
Affirmative: 94. Algeria, Angola, Argentina, Australia, Austria, Bahrain, Barbados, Belarus, Belgium, Benin, Botswana, Brazil, Cambodia, Cameroon, Canada, Central African Republic, Chad, Chile, China, Colombia, Comoros, Congo, Croatia, Cuba, Cyprus, Czech Republic, Denmark, Egypt, El Salvador, Estonia, Ethiopia, Finland, France, Germany, Ghana, Greece, Guyana, Honduras, India, Indonesia, Islamic Republic of Iran, Italy, Japan, Jordan, Kenya, Republic of Korea, Kuwait, Luxembourg, Malaysia, Mali, Mauritius, Mexico, Republic of Moldova, Morocco, Mozambique, Namibia, Netherlands, Nicaragua, Niger, Norway, Oman, Pakistan, Papua New Guinea, Peru, Philippines, Poland, Portugal, Qatar, Romania, Russian Federation, San Marino, Saudi Arabia, Seychelles, Slovakia, Slovenia, South Africa, Spain, Sri Lanka, Suriname, Sweden, Switzerland, Syrian Arab Republic, Tajikistan, Thailand, Togo, Trinidad and Tobago, Tunisia, Turkey, Ukraine, United Arab Emirates, Uruguay, Venezuela, Viet Nam, Zimbabwe.
Negative: 3. Ecuador, Jamaica, Latvia.
Other: 7. Bulgaria, Costa Rica, Hungary, Lebanon, New Zealand, United Kingdom, United States.
Angola. Social and working conditions have changed since 1952.
Argentina. Since this is an area governed by an international Convention, the revision should be through an instrument of the same level.
Argentine Industrial Union (UIA): No. The subject is not suitable for an international Convention.
General Confederation of Labour (CGT): Yes. To ensure protection of the mother and provide job security.
Australia. Convention No. 103, which covers an important issue, has a very poor ratification record because it is too prescriptive in its current form. A more flexible, facilitative approach would allow member States to develop their own approach to maternity leave and would encourage ratification. The Convention needs to be updated in light of changing practices in many countries, where developments have outstripped some of the key concepts and principles underlying the 1952 revision. For example, women should have the right, but not be obliged, to take maternity leave. The preamble in the current instrument does not provide sufficient information regarding the purpose, goals or aims of the Convention. The major aim of the standard needs to be clarified in the preamble. If the main intent is to protect the mother, the instrument may be quite different to one which aims to protect the child. The new standard should not overlap with the Workers with Family Responsibilities Convention, 1981 (No. 156).
Austria. Federal Chamber of Labour (BAK): There should be no changes that would restrict national provisions.
Azerbaijan. Azerbaijan Trade Unions Confederation: Yes.
Bahrain. Due to the increasing role of women, especially in industry and commerce, including administrative and banking activities.
Belgium. The current Convention is too detailed; general principles would be preferable.
Benin. Confederation of Independent Trade Union Organizations (COSI): Economic conditions have evolved over the past 40 years. It is time to adapt regulations to current conditions of work.
Brazil. A Convention should be adopted revising Convention No. 103.
National Confederation of Commerce (CNC): No. Convention No. 103 should be considered as the minimum standard. Any additions should be determined by way of collective bargaining.
National Confederation of Financial Institutions (CNF): Yes. Considering the numerous modifications required by the modern world.
National Confederation for Industry (CNI): No. Convention No. 103 should be considered as the minimum standard. Any "plus" should be obtained through collective bargaining.
Bulgaria. Ministry of Labour and Social Policy: Yes; Ministry of Health: No.
Cambodia. To be more realistic and flexible.
Canada. This Convention should be revised to reflect prevailing national law and practice, as well as the significant increase in the number of women in the workforce.
Canadian Employers' Council (CEC): No. It is more important to see to the ratification of Convention No. 103 by more countries.
Central African Republic. The questionnaire contains new and pertinent proposals which should contribute to the protection of women in their reproductive function.
Chile. Certain points need to be clarified, the instruments require greater flexibility and new forms have to be developed which prevent maternity protection from being a source of discrimination against women in employment. Atypical workers are often not covered by traditional protection.
Confederation of Production and Trade (CPC): No.
China. During the past half century, new and expanding industries have emerged continuously and the social labour areas in which women participated have broadened. Economic developments during this period in various countries have provided women with more effective protection. Convention No. 103 should be revised by integrating it with the practical experience of various countries and with the objectives of developments in the twenty-first century.
Colombia. In keeping with the changes resulting from the growing participation of women in the workforce.
Congo. With a view to improving the socio-professional situation of women.
Costa Rica. The International Labour Conference should adopt any instruments needed. Gaps or unclear provisions in Convention No. 103 should be revised with a view to protecting the rights of the weakest.
Denmark. An instrument should concentrate on the principle of non-discrimination of women and should explicitly include pregnant women. The need for protection from discrimination has increased as more and more women have entered the labour market and wish to maintain the attachment to the labour market after they have had children. The ban on discrimination during pregnancy and maternity is a natural part of the implementation of gender equality in the labour market.
Danish Employers' Confederation (DA): No.
Dominica. Dominica Amalgamated Workers Union (DAWU): Yes.
Dominica Trade Union (DTU): Yes.
Waterfront and Allied Workers Union (WAWU): Yes. Some of the previous provisions are antiquated.
Ecuador. It would not be wise to adopt another Convention establishing obligations which could be difficult to meet given the country's economic situation.
National Council of Women (CONAMU): Yes. To make provision for the greatest number of risk factors for women's health and maternity and to incorporate the provisions included in relevant ILO Conventions.
Ecuadorian Central Confederation of Class Organizations (CEDOC): The Convention should not be revised, particularly if the revision would imply any reductions in its provisions. The principles of Convention No. 103 were only recently implemented in Ecuador. Previously, only a few institutions and enterprises applied it as a result of collective bargaining.
General Union of Ecuadorian Workers (UGTE): Yes. Changes have occurred in the labour relations sphere which require up-to-date standards.
Ethiopia. As a necessary condition for equality in employment.
Confederation of Ethiopian Trade Unions (CETU): Yes. To strengthen the existing Convention.
Finland. To bring maternity protection to the present level of social development and knowledge of factors affecting the health of mother and child.
Confederation of Finnish Industry and Employers (TT), Employers' Confederation of Service Industries (LTK), Federation of Finnish Enterprises, and Commission for Local Authority Employers (KT): No. National legislation and practices and employment structure vary. Therefore a Convention is not a suitable instrument. A Recommendation would be sufficient.
Germany. BDA: Yes. A Convention limited to fundamental minimum standards that can be implemented throughout the world.
Ghana. The Convention should cover all private economic activities with legal implications clearly spelt out when breached.
National Council on Women and Development (NCWD): Yes. To take cognizance of modern developments, the Committee on the Elimination of Discrimination Against Women (CEDAW) and other relevant United Nations provisions.
Ghana Employers' Association (GEA): No.
Trades Union Congress (TUC): Yes. A revision should take current realities into consideration, i.e. the formal and informal sectors.
Honduras. In order to adapt and update Convention No. 103.
Honduran Enterprise Council (COHEP): If the revision involves improving the definition of concepts, expanding on and improving the wording.
Hungary. The provisions of the present Convention are up to date. Its present contents should not be modified, although certain elements could be extended to include parts which currently appear in the Recommendation.
India. The Convention should provide minimum standards in view of the various conditions existing in Member countries. It is essential to reduce unequal treatment of women in employment due to their reproductive role.
Indonesia. Indonesian Employers Association (APINDO): Yes. Some parts of articles do not apply in our situation.
Islamic Republic of Iran. Given the active presence of women in the labour force, revising Convention No. 103 is justifiable.
Iraq. General Federation of Trade Unions: Yes.
Jamaica. Jamaica Employers' Federation (JEF): Yes.
Japan. A Convention should be adopted in such a way that it allows the aims to be achieved while considering the individual situations of each Member.
NIKKEIREN: A revision proposal must be devised to make the content of both the existing Convention No. 103 and Recommendation No. 95 more realistic and flexible.
Republic of Korea. There are many countries which, owing to their national conditions such as poor social security systems, find it difficult to ratify Convention No. 103. It should be revised to make it more flexible, as far as it is relevant to the fundamental principle of maternity protection, and to promote ratification. An international labour standard is not an objective in itself, but should act as a means to promote human rights and quality of life. Compliance would require tripartite agreement and legislative changes, which take time and effort. It is desirable for the Convention to reflect different conditions as fully as possible. A more pragmatic approach is needed.
Lebanon. The purpose should be to reach new instruments which are sufficiently flexible to enable as many countries as possible to ratify them. The proposed provisions regarding both the scope of application and the length of leave could present difficulties for some countries. Despite the fact that a number of provisions in the new texts allow for options and thus for flexibility, basic obstacles remain.
Lithuania. Confederation of Lithuanian Entrepreneur Employers: Yes. The world is evolving. A fresh look is needed, along with new laws.
Confederation of Lithuanian Industrialists: Yes.
Centre of Lithuanian Trade Unions: Yes.
Lithuanian Labour Federation: Yes.
Lithuanian Workers' Union: Yes. Conditions of work must be improved and perfected because of progress in production.
Unification of Lithuanian Trade Unions: Yes.
Malaysia. The provisions should be general and flexible to enable more Members to ratify. The new Convention should also take into account economic developments and medical advancement.
Malaysian Employers Federation (MEF): Yes. Some of the provisions of the existing Convention are not in line with current needs.
Malaysian Trades Union Congress (MTUC): No. Convince countries to ratify the existing Convention and to regulate the Convention throughout.
Mali. It should be considered as one of the fundamental Conventions of the ILO.
Mauritius. Mauritius Employers' Federation (MEF): No.
Mexico. Given the impact of technological and social advances on working conditions and medical conditions relating to maternity care.
Morocco. The new Convention should be sufficiently flexible to encourage wider ratification. The Convention should promote gains achieved in the area of maternity protection and further develop them according to needs; reconcile the needs and requirements of women workers and the legitimate concerns of employers; and eliminate any discrimination that may arise from measures aimed at maternity protection.
New Zealand. The Government would support the revision of the Convention, so long as there is a genuine intent to provide a Convention that can be ratified by a significant number, if not the majority, of ILO member States. Instruments should be developed that provide general guidance and principles rather than imposing specific technical requirements. Such an approach would allow the maximum number of countries to abide by the intent of the instrument while retaining the flexibility for national laws and practices to determine the detail of applications of the principles concerned. Any standard must accommodate the diverse circumstances of member States. The starting point must be the question: What is the outcome that the standard seeks to promote? In this case, that desired outcome is adequate protection of the employment relationship of women/parents who have children and the assurance of an appropriate level of income and other forms of support during any period of maternity or parental leave. Such outcomes can be achieved in a number of ways (by the State, by the employer, by the employee, or by any combination of the above) and such diversity of approaches should not be precluded.
New Zealand Employers' Federation (NZEF): If Convention No. 103 is to be revised, it should provide guidance and principles rather than the sort of prescription contained in the current Conventions, which have deterred ratification.
New Zealand Council of Trade Unions (NZCTU): An up-to-date and relevant maternity protection Convention is pivotal to the implementation by member States of measures balancing work and family responsibilities. A Convention that is so flexible that maternity leave could be unpaid would weaken the Convention's value and impact.
Nicaragua. A new examination of maternity protection in the world of work is needed.
Niger. To adapt it to the current context.
Oman. So that the revised Convention may be in line with the achievements and victories realized by women in the fields of employment.
Pakistan. The proposed revised Convention could provide better treatment to female workers in respect of maternity protection.
Pakistan National Federation of Trade Unions (PNFTU): Yes.
Papua New Guinea. Due to the increasing number of employed women, legislation should be amended to include equal rights and the elimination of unfair employment practices.
Peru. The political, economic, technological and social changes the world has experienced during the past years make a new international instrument on maternity protection necessary, to bring it in line with the current world situation.
Philippines. The ILO should adopt a Convention to provide more relevant and responsive maternity benefits.
Portugal. The new Convention should encompass the principles recognized by many member States in the field of special measures for health protection and safety of pregnant women, and during periods of nursing, but should be flexible enough to enable ratification by a large number of States.
CCP: No. See General Observations.
Confederation of Portuguese Industry (CIP): It is not considered necessary to revise Convention No. 103, a text which is awaiting ratification by a significant number of ILO member States. In this area, there is a need for flexibility and realism in the standards adopted.
General Union of Workers (UGT): A Convention and a Recommendation should be adopted, especially as the previous instruments on maternity protection date back to 1952. At the Convention level, the minimum parameters are higher than in the previous version. Fundamental requirements relating to safety, health and hygiene at work, and the unquestionable value of maternity and paternity protection for those at work values regarded as essential in any community based on sustainability and welfare make it necessary to revise the legislative instruments.
Romania. Important changes have taken place in the area of international law, concerning the promotion of women's rights, the guarantee of equal opportunity between men and women, as well as the partnership principle in the fulfilment of family responsibilities (care and education of the child). It is timely to proceed with a revision of the Convention. The struggle against discrimination and inequality of opportunity between men and women constitute permanent objectives of international human rights organizations.
Confederation of Romanian Democratic Trade Unions (CSDR): No.
Russian Federation. Minimum thresholds should be laid down to enable ratifying States to implement it. Mention should be made of the fact that ratifying States may exceed the minimum thresholds in their national legislation in accordance with their economic possibilities.
Saudi Arabia. The said Convention has been in force for more than 40 years.
Slovakia. The draft Convention contains minimum standards; the provisions in the Slovak Republic concerning maternity protection are significantly more favourable.
South Africa. BSA: A new instrument should only be considered if it is less onerous than the previous instrument. The questionnaire seems to indicate that a new instrument will be written for sophisticated developed countries with established companies that are already globally competitive. Any new instrument should take due consideration of its impact on employment costs and, more particularly, on the cost of creating new jobs and its impact on small and medium-sized enterprises (SMEs) and the efforts of enterprises to become global players. Any new instrument which could have a detrimental effect on job creation, or could lead to covert discrimination against women of childbearing age, should be avoided.
Sri Lanka. To provide coverage to all the sectors of the economy and more flexibility.
Suriname. Association of Suriname Manufacturers (ASFA): This Convention provides specific protection and minimum standards for women workers.
Sweden. Both instruments are in need of revision and modernization.
Switzerland. UPS: No.
Trinidad and Tobago. If there is substantial support.
National Trade Union Centre (NATUC): Yes. Employers will not engage in such contemporary and humanitarian activities of their own accord.
Tunisia. Should be limited to fundamental principles.
Turkey. Confederation of Turkish Employers' Associations (TISK): The rapid process of change which is taking place in working life at the present time requires more flexible and dynamic provisions in the maternity protection field, as in all fields of industrial relations.
Confederation of Turkish Trade Unions (TÜRK-IÔ): Since 1952, the working conditions of women have changed and the Convention must be revised within the framework of present conditions.
United Kingdom. The United Kingdom supports a Convention setting minimum standards which strike a fair balance between ensuring the protection of the health and safety of pregnant employees and the need to maintain flexibility, competitiveness and employability.
United States. Yes, if the new instrument provides flexible guidelines for governments which more clearly reflect the rights of women to make choices in accordance with their individual needs. If the new Convention expands the role of governments in providing compulsory benefits across the board, then the United States would not recommend adoption of a revised Convention. Sex discrimination still remains a reality. Updating the provisions of Convention No. 103 to reflect global economic, social, legal and political changes, women's need for adequate maternity protection, and their right to equal treatment in the workplace would seem essential to the ILO's long-standing goal of enhancing the role of women in the workplace.
United States Council for International Business (USCIB): It is premature to determine the form of the instrument. Convention No. 103 needs to be revised because it has been ratified by just 36 countries. Thus, the ILO has not found the correct international baseline with respect to maternity protection at work.
American Federation of Labor and Congress of Industrial Organizations (AFL-CIO): Yes. The existing Convention is minimal. Expansion of protections, rights and benefits for maternity and childbirth will enhance employment and economic security for working women and their families.
Viet Nam. A revision of this Convention will draw the Government's and industries' attention to female workers' issues. It should aim to meet the requirements of new situations.
Zimbabwe. Care should be taken not to make employing women counter-productive. Paternity leave should also be included.
Zimbabwe Congress of Trade Unions (ZCTU): Yes. To update it to provide full
benefits and to revise the rest period.
Qu.2 |
|
If so, should the International Labour Conference also adopt a Recommendation supplementing the Convention revising Convention No. 103? |
Total number of replies: 100.
Affirmative: 93. Algeria, Angola, Argentina, Australia, Austria, Bahrain, Barbados, Belarus, Belgium, Benin, Botswana, Brazil, Bulgaria, Cambodia, Cameroon, Canada, Central African Republic, Chad, Chile, China, Colombia, Comoros, Congo, Croatia, Cuba, Cyprus, Egypt, El Salvador, Estonia, Ethiopia, Finland, France, Germany, Greece, Guyana, Honduras, India, Indonesia, Islamic Republic of Iran, Italy, Japan, Jordan, Kenya, Republic of Korea, Kuwait, Luxembourg, Malaysia, Mali, Mauritius, Republic of Moldova, Morocco, Mozambique, Namibia, Netherlands, Nicaragua, Niger, Norway, Oman, Pakistan, Papua New Guinea, Peru, Philippines, Poland, Portugal, Qatar, Romania, Russian Federation, San Marino, Saudi Arabia, Seychelles, Slovakia, Slovenia, South Africa, Spain, Sri Lanka, Suriname, Sweden, Switzerland, Syrian Arab Republic, Tajikistan, Thailand, Togo, Trinidad and Tobago, Tunisia, Turkey, Ukraine, United Arab Emirates, United Kingdom, United States, Uruguay, Venezuela, Viet Nam, Zimbabwe.
Negative: 3. Ecuador, Ghana, Mexico.
Other: 4. Costa Rica, Hungary, Lebanon, New Zealand.
Angola. To clarify certain aspects of the Convention.
Argentina. This would be appropriate for countries that have not adopted the Convention and would provide technical guidelines to help States develop their policies.
CGT: It is a useful means of modifying employment practices.
UIA: No. Only a Recommendation should be adopted.
Australia. A Recommendation could provide suggestions as to how a flexible, promotional Convention might be implemented, and address higher standards for those Members who want a higher goal than a minimum standard.
Austria. However, no less favourable conditions should result. Paragraph 4(1) of Recommendation No. 95 should be retained.
BAK: No changes that would restrict national provisions.
Azerbaijan. Azerbaijan Trade Unions Confederation: Yes.
Belgium. It could lend precision to the general principles included in the Convention.
Benin. COSI: A Recommendation would provide guidance to countries.
Botswana. The revised instruments should also be in the form of a Convention supplemented by a Recommendation.
Brazil. It is important that the Convention be complemented by a Recommendation.
CNC: No. Only a Recommendation should be adopted in order to promote collective bargaining.
CNI: No. The adoption of a mere Recommendation fostering collective bargaining might be the way.
Cambodia. So that all member States, even those which have not ratified the Convention, can adapt to it.
Canada. A Recommendation can include more specific guidelines.
CEC: No. Implementation of Recommendation No. 95 should be emphasized, especially in developing countries.
Chile. Changes have to be made which, on the one hand, bring all of the amendments proposed for the Convention into harmony and, on the other hand, place the issue of maternity in a context of shared responsibility and establish pregnancy as a normal part of the course of women's lives and not as an illness. The Recommendation must complete the Convention.
China. Taking into account the uneven levels of maternity protection, the Recommendation should furnish countries with development objectives, so that maternity protection around the world could enter a new phase.
Colombia. To include all recommendations relating to maternity protection that it is not yet feasible to include in the Convention.
General Confederation of Democratic Workers (CGDT): Yes.
Congo. It would complete the revision of Convention No. 103.
Costa Rica. If there is a need to revise Convention No. 103, it would be appropriate to complement it with a Recommendation.
Czech Republic. MK OS: Yes.
Denmark. Equal Status Council: Yes.
Danish Confederation of Professional Association (AC): Yes.
DA: No. A Recommendation should generally be able to stand alone without ratification of a Convention.
Danish Federation of Public Servants' and Salaried Employees' Organizations (FTF): Yes.
Danish Confederation of Trade Unions (LO): Yes.
Dominica. DAWU: Yes.
DTU: Yes.
WAWU: Yes.
Ecuador. A protocol could be adopted to reform certain aspects of the Convention.
CONAMU: Yes.
UGTE: Yes. Legislation should be revised due to the new labour relations situation.
Estonia. Estonian Confederation of Employers and Industry: No.
Finland. KT: No.
Germany. BDA: Yes. Based on the principles of the Convention and focusing exclusively on essential areas.
Ghana. Recommendation No. 95 is quite adequate.
NCWD: Yes.
GEA: Yes.
TUC: Yes. A Recommendation should enhance the implementation of a new Convention.
Honduras. Necessary for achieving the Convention's objectives.
COHEP: A Recommendation clarifies the wording of the Convention and often expresses the real meaning of the Convention. Conditions of equality between employer and worker need to be established.
Hungary. Hungary does not oppose the adoption of a new Recommendation.
India. The Convention should be followed by a Recommendation to provide for more than minimum standards for countries who can afford to surpass the minimum.
All India Trade Union Congress (AITUC): Yes. Maternity protection should be given highest importance.
Indonesia. APINDO: No.
Islamic Republic of Iran. In light of technological developments, the increase in working hours and the need to ensure the health of mother and child, adopting a Recommendation to supplement the Convention is necessary.
Iraq. General Federation of Trade Unions: Yes.
Jamaica. JEF: Yes.
Japan. See Question 1.
Republic of Korea. A Recommendation should be adopted to serve as a basis for improving laws, regulations, and relevant systems of member States. Developing countries find it difficult to ratify the Convention because of their given circumstances. Some provisions of the Convention should be shifted to the Recommendation as future courses of action.
Lebanon. The Recommendation should guide the member States in developing legislation in accordance with their social and economic circumstances.
Lithuania. Confederation of Lithuanian Entrepreneurs/Employers: Yes.
Confederation of Lithuanian Industrialists: No.
Lithuanian Labour Federation: Yes.
Lithuanian Workers' Union: Yes. The Recommendation should contain more favourable provisions, such as longer duration of leave.
Unification of Lithuanian Trade Unions: Yes.
Malaysia. To provide guidelines and to avoid wide differences among the Members who ratify the Convention.
MEF: No. The Convention should be exhaustive.
Mauritius. MEF: No.
Mexico. A Recommendation independent of the Convention should be adopted, to include measures that serve as a guide to member States and to promote the gradual integration of its provisions into their legislation.
Mozambique. A Recommendation would establish general guidelines on maternity protection and would provide forms of cooperation between the social partners in the understanding and application of the provisions of the Convention.
New Zealand. The Recommendation should provide guidance on detail that allows the new Convention's provisions to be followed by as many countries as possible. If the Convention were unduly prescriptive, the New Zealand Government would support the adoption of a Recommendation only.
NZCTU: Yes, to support the Convention.
Nicaragua. The Recommendation is more flexible, which will facilitate its adoption by certain countries with very specific conditions.
Niger. A Recommendation would enrich and complement a Convention.
Oman. To cover those areas not covered by a binding text in the Convention.
Philippines. The Recommendation should provide member States with guidelines for applying the new Convention and should put forward the desired and needed improvements in maternity protection.
Portugal. The Recommendation should complement the Convention, integrating matters where the evolution of protection will be gradual and dependent on agreements. Examples include the increase in length of maternity leave beyond 12 weeks, its spread and extension, its financing and the protection of employment.
CIP: No.
UGT: See Question 1.
Russian Federation. A Recommendation should reflect the changes and additions to the revised Convention.
Slovakia. To harmonize with higher requirements suggested in the Convention.
Sri Lanka. For the purpose of implementation, guidelines are required based on the general principles of the Convention.
Sweden. See Question 1.
Switzerland. It was surprising to find that the financing of benefits was not included in the scope of the Convention. The Convention could include such a provision.
UPS: We are not in favour of the adoption of any instrument. However, the most acceptable solution would be a flexible and realistic Recommendation.
Syrian Arab Republic. To be applied should Convention be found confusing, and for implementation should ratification of the Convention not be realized, during drafting or amending of legislation.
Tunisia. Would contain details, as well as provisions likely to be obstacles to wide ratification.
Turkey. TISK: Recommendations provide guidance for member States in their legislative activities pertaining to working life. Detailed provisions which cannot be included within a Convention are included in Recommendations, thus adding depth to the Conventions and creating a basis for extending their provisions. In addition, the constructive role which a Recommendation may possibly play in the preparation and adoption of a Convention make it essential to adopt a Recommendation together with the Convention.
United Kingdom. The United Kingdom could support a Recommendation which provided guidance limited to implementing an acceptable Convention.
United States. Members will address maternity protection in accordance with their own customs, laws and needs of women workers. Given the need for a flexible Convention, a Recommendation can provide additional guidance to governments in establishing maternity protection benefits that best reflect those local situations.
USCIB: At a minimum, a Recommendation should be adopted.
AFL-CIO: The existing Recommendation is minimal. Expansion of protections, rights and benefits for maternity and childbirth will enhance employment and economic security for working women and their families.
Viet Nam. The Recommendation should be revised to suit the revised Convention.
Zimbabwe. A balance should be maintained between the interests of the employers and employees lest women become unemployable in the process.
ZCTU: To ensure proper implementation.
The vast majority of replies from governments, as well as from employers' and workers' organizations, favoured the adoption of a Convention revising the Maternity Protection Convention (Revised), 1952 (No. 103). A strong majority of replies supported the adoption of a Recommendation supplementing a revised Convention.
The prevailing view that emerged from the replies was that the Convention needed to be updated in light of changes that had occurred since 1952, most significantly, the tremendous increase in the number of women in the workforce. Concern was expressed for the struggle of women against discrimination in employment and against inequality of opportunity between men and women. A Convention was seen as necessary to ensure both health protection for mother and child, and job security.
The value of a Recommendation was attributed to its potential to assist countries in implementing the Convention. Several countries suggested that specific guidelines for application be provided in the Recommendation in order to clarify certain aspects of the Convention. These were considered especially helpful for developing countries.
A number of countries expressed the view that the new Convention should be sufficiently flexible to enable the widest possible ratification. Some governments and employers suggested that the Convention should provide general principles and guidance rather than impose detailed requirements. Several countries stated that the Convention should set minimum standards which strike a fair balance between the needs of women workers and the concerns of employers. A few replied that further obligations placed upon employers could result in increased discrimination against women. Other governments and workers' organizations favoured clearly defined legal obligations and cautioned that too much flexibility could weaken the value and impact of the Convention.
Some governments and workers' organizations stressed that the Recommendation should contain provisions that go beyond the minimum standards provided in the Convention to provide guidance to those countries that are able to strengthen protection further. Desirable provisions that would be difficult to ratify could be placed in the Recommendation. Also, the significance of a Recommendation for those Members who would not ratify a revised Convention was noted.
One government that opposed the revision expressed concern that its economic conditions were not conducive to assuming increased obligations under a new Convention. Some employers' and workers' organizations expressed satisfaction with the 1952 instrument and urged wider ratification.
Points 1 and 2 of the Proposed Conclusions have been drafted in accordance with the majority response.
II. Definitions and scope
Q. 3(1) |
|
Should the instruments apply to all employed women, provided that, in the case of a Convention, a Member may, after consulting the representative organizations of employers and workers concerned, exclude wholly or partly from its scope limited categories of employed women or of enterprises when its application to them would raise special problems of a substantial nature? |
Total number of replies: 105.
Affirmative: 89. Algeria, Angola, Argentina, Australia, Austria, Bahrain, Barbados, Belarus, Belgium, Benin, Botswana, Brazil, Bulgaria, Cambodia, Cameroon, Canada, Central African Republic, Chile, China, Comoros, Costa Rica, Cyprus, Czech Republic, Egypt, El Salvador, Estonia, Ethiopia, Finland, France, Germany, Ghana, Guyana, Honduras, Hungary, India, Indonesia, Italy, Jamaica, Japan, Kenya, Republic of Korea, Kuwait, Lithuania, Luxembourg, Malaysia, Mali, Mauritius, Republic of Moldova, Morocco, Mozambique, Namibia, Netherlands, New Zealand, Nicaragua, Niger, Norway, Oman, Pakistan, Papua New Guinea, Philippines, Poland, Portugal, Romania, Russian Federation, San Marino, Saudi Arabia, Seychelles, Slovakia, Slovenia, South Africa, Spain, Sri Lanka, Suriname, Sweden, Switzerland, Syrian Arab Republic, Tajikistan, Thailand, Trinidad and Tobago, Tunisia, Turkey, Ukraine, United Arab Emirates, United Kingdom, United States, Uruguay, Venezuela, Viet Nam, Zimbabwe.
Negative: 8. Colombia, Croatia, Cuba, Ecuador, Jordan, Lebanon, Mexico, Peru.
Other: 8. Chad, Congo, Denmark, Greece, Islamic Republic of Iran, Latvia, Qatar, Togo.
Argentina. It should apply to all employed women except for special cases.
CGT: Yes. To all employed women without exception. Only partial exemptions, based on particular aspects of the work, would be acceptable.
UIA: Yes. Application to all women employees would not be a problem in a Recommendation.
Australia. There should be provision for exclusions in respect of employees to whom it would be difficult to extend the protections provided by the Convention. For example, casual or seasonal employment where work arrangements are informal, irregular and uncertain and the employee is able to refuse an offer of work on a particular day. Coverage is also inappropriate for those engaged under a contract of employment for a specified period of time or a specified task. Given the high proportion of female employees employed on a casual basis, it would be inappropriate to provide only for "limited" exemption. As a new point, the instruments should apply to all employed women who have served a prescribed minimum period of service with the employer, for example 12 months.
Australian Council of Trade Unions (ACTU): Yes, but only in extremely limited circumstances. Exclusion of categories, such as casual or part-time workers, workers with less than a specified period of service, or employees of small businesses, should not be permitted.
Azerbaijan. Azerbaijan Trade Unions Confederation: Yes.
Bahrain. The two instruments concerned must apply to all women in employment, except in very limited exceptional cases to be determined by the State's competent authorities.
Barbados. The Convention should include working mothers and fathers, including self-employed workers who have made the required contributions to social insurance.
Belarus. Any possible exclusions of limited categories of employed women should be specified in the Convention itself.
Belgium. The Maternity Protection Convention is a basic instrument to which other Conventions refer. A restricted scope would therefore have indirect consequences on other Conventions, so prudence should be exercised. Any permitted exceptions should be strictly interpreted and limited for reasons of non-discrimination.
CNT: The scope of the instrument(s) should be as wide as possible and exclusions as limited as possible. Exclusions should be based on serious, objective reasons and should not run counter to provisions accepted in other Conventions, notably the Part-time Work Convention, 1994 (No. 175), and the Home Work Convention, 1996 (No. 177).
Botswana. In order to build in flexibility.
Brazil. CNF: No. The standards should apply equally to all categories.
Cambodia. This would allow the instrument to be ratified by those with problems of a substantial nature.
Canada. The Convention should apply to all women, with as few exceptions as possible. However, ratification is likely to be difficult with respect to the coverage of agricultural workers, some homeworkers, some domestic workers, contract workers, and casual and temporary employees. The addition of the phrase "in accordance with national law and practice" may ensure enough flexibility to enable Canada to ratify.
Canadian Labour Congress (CLC): Yes. Given the concentration of women in agriculture, homework, domestic work, part-time and contingent work, exclusions should be allowed only in exceptional circumstances.
Chad. The instruments should apply to all employed women without exception.
Chile. The instruments must apply to all working women, with care being taken to ensure that the maternity protection standards contain clear instructions to avoid discrimination among women in employment.
China. This provision is consistent with conditions in developing countries.
Colombia. No working women should be excluded. The principle of the universality of social security should be applied.
CGDT: To "exclude wholly or partly from its scope limited categories of employed women or of enterprises" would infringe upon established rights and would encourage employers to adopt mechanisms which infringe the law.
Croatia. The Convention should be applied to all employed women, without the possibility of exclusions.
Croatian Association of Employers: Yes.
Cuba. The instruments to be adopted should apply to all women workers who have the status of wage-earners irrespective of the contract of employment, whether in the State, private or cooperative sector.
Cyprus. Initial exclusion of limited categories as stated in this question could be accepted only for reasons of flexibility.
Czech Republic. MK OS: The existing provision of Article 1, paragraph 5, of the Convention should be omitted.
Denmark. The Convention should have a broad scope to enable adoption by all trades. If the Convention is only to include a ban on discrimination on the basis of pregnancy and maternity, there should not be exclusions for certain categories of employed women.
FTF: The Convention should cover all employed women, but exclusions must be described in the report following ratification.
LO: The Convention should cover all employed women, but exclusions must be described in the report following ratification.
Dominica. Dominica Civil Service Association (CSA): Yes. This Convention should apply to all women without exception.
DAWU: It should apply to all employed women. In addition, homeworkers and informal sector workers should be considered.
DTU: Yes.
WAWU: Yes.
Ecuador. There should be no exceptions other than those which are insuperable. Consulting those involved is the best way of determining such exceptions.
CONAMU: Yes. To all women workers in all branches of economic activity which are recognized for the purposes of fixing wages, salaries and/or minimum rates.
National Federation of Chambers of Industry of Ecuador: The aim should be more flexibility and broader coverage and benefits.
UGTE: Yes. It should apply to all women without discrimination.
Egypt. In deference to the conditions and situations prevailing in each State.
El Salvador. These instruments should apply to all women who work, but should exclude categories of workers when application to them would raise special problems.
Estonia. Estonian Association of Trade Unions: Yes. Article 1 should take a more general form. From Convention No. 103, only (6) might be included in the new Convention.
Ethiopia. No exclusion.
Finland. Exclusion of certain categories is not desirable and should be avoided.
France. French Democratic Confederation of Labour (CFDT): Yes. Any exclusion should be due to insurmountable problems and should follow consultation with the social partners.
General Confederation of Labour Force Ouvrière (CGT-FO): The Convention should apply without reservation to all employed women.
Germany. Limited exemptions for certain occupations are inevitable.
Ghana. All categories of women workers in every sector of the economy should be covered.
GEA: Yes, for ease in implementation.
TUC: Yes. Ways should be explored to make the Convention cover the informal sector.
Honduras. COHEP: Favourable conditions should be created for small and medium-sized enterprises. Gradual implementation of provisions should be possible.
India. AITUC: Yes. The Convention should apply to all employed women without exception.
Bharatiya Mazdoor Sangh (BMS): No. It should not apply to young adolescent mothers. Limited exclusions should be allowed as proposed.
Centre of Indian Trade Unions: No. All women workers must be covered, including part-timers, without exception.
National Front of Indian Trade Unions: If member States are committed to maternity protection as a condition of equality and non-discrimination, there is little scope to limit the categories of employed women or operative areas for any reason. Rather, member States should undertake in-depth study to provide coverage to unprotected areas.
Indonesia. APINDO: No.
Islamic Republic of Iran. Excluding some categories is unreasonable, especially considering that universal welfare is a major goal for the third millennium.
Iraq. General Federation of Trade Unions: Yes.
Italy. The maternity protection standards should apply to all workers in the private sector and state employees. Special supervision should be made of the reasons for the exclusion of any categories.
Jamaica. All women with no exceptions.
Japan. To provide flexible application that considers the national situation in each country.
JTUC-RENGO: All employed workers should be covered, regardless of sectors. The draft is too flexible in this sense. In particular, women workers, such as dispatched, home and contract workers, should be protected.
Jordan. Only employed women who are subject to labour law should be covered.
Amman Chamber of Industry: No. The Convention should apply to all employed women who are subject to labour law.
Federation of Jordanian Chambers of Commerce: Yes.
General Federation of Jordanian Trade Unions: Yes.
Republic of Korea. Exceptions and gradual application of the standards should be allowed considering the different situations among countries.
Latvia. All employed women without exception. Labour legislation is applied to all employees and employers, regardless of their status and ownership of the enterprise, when labour relations are based upon a labour agreement.
Lebanon. Categories of excluded workers and enterprises need not be specified in the instrument itself. Linking exclusions with special problems of a substantial nature is inappropriate, because such problems are difficult to define or reach consensus on, and the substantial or non-substantial nature of the problems may vary from one country to another.
Lithuania. Confederation of Lithuanian Entrepreneurs/Employers: Yes. There should be no exceptions.
Lithuanian Workers' Union: Yes. All employed women without exception should be covered.
Malaysia. Exclusions of certain categories of employed women should be provided for.
Mali. Extend protection to all working women, including the self-employed who have regular earnings.
Mauritius. MEF: No.
Mexico. It should only apply to employed women, who provide a personal and subordinate service, subject to an employment relationship. Possible exceptions should be given in this subparagraph to accommodate national circumstances.
Morocco. Inclusion of other categories of women workers, such as those in the informal sector and self-employed women, may create difficulties. This problem may arise in countries that have social protection systems that only cover formal sector employees. It should be possible to exclude categories of workers not covered by national legislation to enable such countries to ratify the Convention.
Federation of Chambers of Commerce, Industry and Services (FCCIS): No.
Mozambique. It should apply to all women workers, with the exception of piecework or casual work.
Workers' Organization of Mozambique (OTM): The Convention should apply to all working women irrespective of their category.
Namibia. The informal sector should be covered.
Netherlands. The special circumstances of special groups should be taken into account. The possibility of making exceptions is also endorsed.
New Zealand. Member States should be allowed to delineate special reasons for exclusion. The prescribed categories should not be so prescriptive as to preclude exclusions based on qualifying conditions, for example.
NZEF: An attempt to specify which categories might be excluded would inhibit ratification. Countries should not be expected to remove exclusions which they find appropriate.
NZCTU: The Convention should extend to all employed women.
Nicaragua. No women or enterprises should be excluded.
Niger. The social problems of workers are almost the same for all employed women. The instruments should apply to all employed women.
Norway. The Convention should provide for the exclusion of certain categories of employees from the entire Convention or parts of it.
Oman. To allow Members to determine such matters via national legislation in consultation with employers' and workers' organizations.
Pakistan. Such a flexible provision would strengthen tripartite approach to maternity issues and also provide practical solutions to special problems of a substantial nature.
PNFTU: Yes. Except women designated or categorized as "employers" or executives of the enterprise.
Papua New Guinea. This is needed in recognition of the difficulties which small, private sector employers may have with compliance.
Peru. Exclusions will depend on the particular situation in each member State.
Single Confederation of Workers of Peru (CUT): A limited list of possible exceptions should be established, based on the type of work performed rather than on the category of enterprise.
Philippines. The Convention should extend flexibility to member States encountering special problems in its application. A Member should have the prerogative in determining coverage.
Portugal. The possibility of exclusions enables wider ratification. It is not desirable that exclusions be defined with regard to the number of women employed in the firm, which would endanger the protection of women employed in small firms.
CIP: Member States should have the option of excluding certain categories of workers or enterprises.
General Confederation of Portuguese Workers (CGTP): No.
UGT: There should not be any discrimination between female workers. What legitimacy is there for allowing derogations for categories of workers or sectors of activity when the specific features of the categories or sectors are unrelated to the purpose of maternity and/or paternity protection?
Qatar. Both instruments should apply to all employed women under legal employment relations.
Romania. Within the framework of collective agreements, employers and trade union organizations can include special arrangements applicable to limited categories of workers or enterprises, when these arrangements are required by certain special conditions of work.
San Marino. When there is a formal employment relationship.
Saudi Arabia. If such representative organizations exist.
Seychelles. All women should be covered, regardless of the nature of their employment.
Slovakia. Equal protection for all women without any exception.
South Africa. No discrimination must be allowed in terms of nature of work, organization and marital status. Consideration should be given to homeworkers and other forms of atypical employment. In principle, such women should also be covered by the proposed Convention.
BSA: Exceptions will be needed for SMEs and other sectors, such as agriculture, particularly when employers who provide housing cannot do so for the replacement staff.
Spain. Any possible exceptions should be listed in a separate declaration.
Galician Inter-Union Confederation (CIG): Yes. Article 1 should also include self-employed workers.
Sri Lanka. To eliminate discriminatory grounds of treatment of employed women and make application of the Convention flexible.
Suriname. ASFA: To take into account national economic and social circumstances.
Sweden. Exceptions for particular groups are undesirable and should be avoided. To promote ratification of the Convention, the possibility of limited exceptions might be provided, in which case these should be specified as per Question 3(2).
Switzerland. National legislation does not apply to agriculture, to homeworkers or to the public administration.
Union of Genevan Employers' Associations (UAPG): The scope should be limited to employed women and not extended to the self-employed.
VSA: Yes. However, exclusions must be strictly limited to groups for which implementation of the Convention would cause major difficulties.
Syrian Arab Republic. Providing that exceptions be limited to ensure a higher degree of protection for maternity at work.
Togo. The instruments should apply to all women employed in the modern sector and even those in flourishing, unstructured sectors which require regulation.
Tunisia. To assure broader protection.
Turkey. TISK: It is becoming important to include exceptions as far as possible in any Conventions which are adopted and to provide freedom of action for both labour and management with regard to employment relationships.
United Arab Emirates. It is important to give flexibility in the provisions of the Convention.
United Kingdom. The Convention should apply to all women employed by an employer since the rationale behind maternity provisions is the need to protect the health and safety of a pregnant woman and her child around the time of birth. It would be difficult to justify exemptions from health and safety measures, although these could be acceptable where States can justify them.
United States. The coverage should be construed broadly and the exemptions narrowly, so as to eliminate the continuation of any unlawful sex discrimination.
USCIB: The instrument should apply to all employed women with no provision for exclusions.
AFL-CIO: The Convention should be drafted and interpreted broadly, with a presumption of coverage. Any exclusion should be narrowly tailored in response to a specific identified substantial problem. Exclusions should not disproportionably impact groups of workers, e.g. low wage workers.
Uruguay. Our current system applies to all women workers.
Venezuela. There should be no form of discrimination against employed women nor any restrictions with regard to enterprises.
Viet Nam. The scope should be extended to gradually cover all categories of employed women.
Zimbabwe. ZCTU: Without exceptions.
The majority of governments, as well as employers' and workers' organizations, supported the principle of coverage for all employed women. Many viewed this point as fundamentally important. Point 6(1) of the Proposed Conclusions was drafted accordingly. This Point simplifies the scope provided in Article 1 of Convention No. 103 which limited the application of the Convention to "women employed in industrial undertakings and in non-industrial and agricultural occupations, including women wage earners working at home" and listed in extensive detail the types of undertakings, services and occupations included.
The majority of governments, as well as employers' and workers' organizations, also favoured permitting exclusions in situations in which application to limited categories of workers and enterprises would raise special problems of a substantial nature.
It was felt that allowing such exceptions would provide the necessary flexibility to enable member States to ratify the Convention, even when they were in the process of extending its application to all employed women. This provision was drafted as Point 6(2) of the Proposed Conclusions. One Member suggested that possible exceptions of limited categories be explicitly listed in the Convention itself, an approach similar to that taken in Article 7 of Convention No. 103.
Many replies stated that any exclusions should be strictly interpreted and limited to exceptional cases. Several replies suggested specifically providing coverage of workers at risk of exclusion, such as agricultural workers, domestic workers, contract workers, home workers, casual and temporary workers, and self-employed workers. However, others expressed great concern that specifically requiring coverage of such categories of workers or enterprises could impede ratification. In view of the fact that coverage, at least with respect to benefits, may depend to a large extent upon the economic situation in each member State, Point 6(2) reflects the flexibility necessary to enable countries to take account of their national situation, while Point 6(1) affirms the principle of application to all employed women.
The concern was raised by a number of countries that exclusions would result
in unequal treatment among women in employment, with regard to both discrimination
based on maternity and protection of safety and health. One government pointed
out that any restriction of scope should be examined with reference to other
Conventions that call for maternity protection for certain categories of women.
Qu. 3(2) |
|
In the case of a Convention, should each Member which ratifies the Convention list, in its first report on the application of the Convention under article 22 of the Constitution of the ILO, the categories of employed women or of enterprises thus excluded and the reasons for their exclusion, and describe, in its subsequent reports, the measures taken with a view to progressively extending the provisions to these categories? |
Total number of replies: 102.
Affirmative: 99. Algeria, Angola, Argentina, Australia, Austria, Bahrain, Barbados, Belarus, Belgium, Benin, Botswana, Brazil, Bulgaria, Cambodia, Cameroon, Canada, Central African Republic, Chad, Chile, China, Colombia, Comoros, Congo, Costa Rica, Croatia, Cyprus, Czech Republic, Denmark, Ecuador, Egypt, El Salvador, Estonia, Ethiopia, Finland, France, Germany, Ghana, Guyana, Honduras, India, Indonesia, Islamic Republic of Iran, Italy, Jamaica, Japan, Jordan, Kenya, Republic of Korea, Kuwait, Latvia, Lebanon, Lithuania, Luxembourg, Malaysia, Mali, Mauritius, Mexico, Republic of Moldova, Morocco, Mozambique, Namibia, Netherlands, New Zealand, Nicaragua, Niger, Norway, Oman, Pakistan, Papua New Guinea, Peru, Philippines, Poland, Portugal, Qatar, Romania, San Marino, Saudi Arabia, Slovenia, South Africa, Spain, Sri Lanka, Suriname, Sweden, Switzerland, Syrian Arab Republic, Tajikistan, Thailand, Togo, Trinidad and Tobago, Tunisia, Turkey, Ukraine, United Arab Emirates, United Kingdom, United States, Uruguay, Venezuela, Viet Nam, Zimbabwe.
Negative: 1. Slovakia.
Other: 2. Hungary, Seychelles.
Argentina. CGT: This is essential to ensure effective implementation of the Convention.
UIA: No. See 3(1).
Australia. With the understanding that new exclusions which may become necessary after the first report are not prohibited.
Azerbaijan. Azerbaijan Trade Unions Confederation: Yes.
Belgium. Any permitted exclusions should gradually disappear.
CNT: The instrument(s) should be conceived so as to encourage member States to examine their progress to achieving the defined goals.
Benin. COSI: It would be useful in order to follow the application in each country.
Botswana. Progressive coverage of excluded categories will give member States which ratify the Convention opportunity to deal with special problems which prevent full coverage.
Brazil. CNF: No. There should be no exclusions but the same standards with varying degrees of application.
Cambodia. To help extend the application to other categories.
Canada. Exclusions should be reported with a view to eventual limitation and removal.
CEC: No.
CLC: Yes. If such exclusions must exist, governments must be accountable.
Chile. In so far as the effectiveness of the standards is secured.
CPC: No. At the time of ratification they should indicate that certain categories and enterprises are excluded.
China. The method of progressively extending coverage is consistent with the national conditions in developing countries.
Colombia. The reports should describe the measures taken to achieve the objectives and any restrictions encountered.
Comoros. To inform the ILO.
Congo. Keeping account of the level of industrial development of each country and of the nature of work prohibited to women for physical reasons.
Costa Rica. Member States should, in their first reports, indicate the categories that are thus excluded and show that measures are being taken to progressively extend the Convention to those categories. More information on this should be given in subsequent reports.
Czech Republic. MK OS: If point 5 of Article 1 is to be left in the revised Convention, then the proposed procedure is essential.
Denmark. FTF: Exclusions must be justified and this will render the individual countries' work to improve their support for the Convention visible.
LO: The description of measures should also state those conditions which prevent exempted groups of women or enterprises from being completely covered by the Convention.
Dominica. CSA: Yes.
DAWU: Yes.
DTU: Yes.
WAWU: Yes.
Ecuador. But the ILO must take each country's situation into account in requesting progressive extension.
CONAMU: States should seek to broaden the categories of women workers and enterprises covered, rather than to exclude them.
UGTE: No. No groups should be excluded.
Egypt. But the scope cannot easily be extended to categories, such as domestic and agricultural workers.
Finland. However, exclusion of any categories should be avoided in the first place.
TT and the Federation of Finnish Enterprises: No. Certain categories of women and of enterprises may be excluded permanently. There should be no obligation to describe the measures taken with a view to extending the provisions to these categories.
France. French Confederation of Christian Workers (CFTC): Yes. For greater transparency.
Germany. BDA: Yes, provided that "list, in its first report" be amended to "list in its reports" to ensure that exemptions are possible even after the first report in the event that "special problems of a substantial nature" come to light; and the obligation of "progressively extending the provisions" should apply only when the original reasons for the exemptions have ceased to apply.
Ghana. GEA: To enable the State to know which enterprises should benefit from the Convention and to assist those excluded to benefit from the Convention.
Honduras. COHEP: Yes. It would obviate the problem of denunciations resulting from inappropriate application of the Convention.
Hungary. The obligation of continuous reporting to ensure that exclusions are temporary in nature.
India. AITUC: No. No exceptions should be allowed.
Bharatiya Mazdoor Sangh: No. Some categories of women should be excluded from the scope of the Convention.
Centre of Indian Trade Unions: No. There should be no exclusion. See 3(1).
National Front of Indian Trade Unions: Member States should reconsider any exclusions and revise their decisions.
Islamic Republic of Iran. While considering the economic situation, the gradual extension of coverage is the main goal.
Iraq. General Federation of Trade Unions: Yes.
Jamaica. JEF: No.
Japan. JTUC-RENGO: No. See 3(1).
Jordan. Definitely.
General Federation of Jordanian Trade Unions: No.
Lithuania. Confederation of Lithuanian Industrialists: No.
Lithuanian Workers' Union: No. There should be none.
Malaysia. MEF: No. No explanation should be required.
MTUC: Yes. Any exclusion should not deprive women of their existing benefits.
Mozambique. OTM: No. The Convention should prohibit exclusions.
Namibia. Namibia Employers' Federation (NEF): Yes. Countries should list exclusions.
Netherlands. Netherlands Trade Union Confederation (FNV): Place emphasis on "the measures taken with a view to progressively extending the provisions to these categories".
New Zealand. A reporting regime should clearly identify the exclusions that member States currently apply. There should be no requirement for progressive application. Where any government has exclusions in place for specific reasons, there should be no requirement to move towards eliminating such exclusions, so long as the reasons are still valid.
NZEF: First reports should state exclusions but without any requirement to move towards their elimination.
NZCTU: The NZCTU agrees with the ILO definition proposed.
Nicaragua. Members will more easily be able to adapt the Convention to their own political, social and economic conditions.
Niger. In accordance with the ILO Constitution.
Norway. This rule will ensure that categories of employees which certain countries have excluded from the scope of the Convention are not forgotten.
Pakistan. This would enable those who ratify to make preparations for extending the provisions of the Convention to these categories.
Papua New Guinea. Maternity protection should be appropriate to national circumstances and move towards a broader coverage, regardless of sectors of activity or the type of worker.
Peru. The current mechanism provided for in Article 7 of Convention No. 103 would thus be replaced, without prejudice to the periodic reports of the Governing Body.
CUT: See Question 3(1).
Philippines. Such reports will lay down action plans for an enhancement of maternity benefits.
Portugal. This is a standard clause to ensure progressive extension.
Qatar. If the instrument allows exceptions.
Seychelles. See 3(1).
Slovakia. In order to guarantee the equal approach to all women.
South Africa. BSA: It should not be presupposed that all exclusions will be temporary.
Spain. This is the same as Article 7(4) of Convention No. 103.
Sri Lanka. To apply the Convention according to the national conditions.
Suriname. ASFA: To guarantee better protection for women.
Syrian Arab Republic. Provided that coverage is gradually extended to all categories.
Togo. Such a report would inform the ILO of the manner in which the Convention is being applied by each Member and of the measures foreseen to improve application in the future.
Tunisia. To permit ILO supervisory bodies to fulfil their mission and guarantee full respect of the Convention.
Turkey. TISK: To ensure appropriate monitoring and evaluation.
United Kingdom. An effective system of monitoring implementation and ensuring that exemptions are justifiable or lawful would be needed.
United States. To inform the ILO as to the ongoing global status of working women, and the respective rationales of the Members for their exclusion or inclusion of various categories of workers.
USCIB: No. There should be no exclusions.
AFL-CIO: Yes. The description of "measures taken" should include a timeline for action and also any actions taken to mitigate the effects of exclusions.
Venezuela. Where categories of women or enterprises are excluded.
Viet Nam. It would help policy-makers set up a comprehensive policy to provide maternity leave for all female workers.
Zimbabwe. ZCTU: Yes. To ensure proper monitoring and evaluation.
A strong majority of replies were in support of this provision, which would allow Members to list categories of workers or enterprises excluded in their first report on the application of the Convention under Article 22 of the Constitution of the ILO. It has been included as Point 6(3) of the Proposed Conclusions.
Point 6(3) differs from Article 7 of Convention No. 103 in that a Member is simply required to list any exclusions and the reasons for them in its first report on the application of the Convention rather than being required to make a formal declaration at the time of ratification. One reply proposed changing "first report" to "reports" thereby enabling Members to provide for the possibility of exclusions at a later date.
Many of the replies favoured the requirement to describe in subsequent reports
the measures being taken to progressively extend coverage to all women. Allowing
for progressive extension is provided in Point 6(3) as a way of accommodating
countries whose economic circumstances would not allow them to provide coverage
to all employed women immediately. However, a few replies, while in favour of
reporting upon the categories excluded, were not in favour of a requirement
that Members progressively extend coverage to excluded groups or categories.
One government raised the question of how to ensure that exclusions would be
limited to categories raising special problems of a substantial nature. The
Office notes that similar provisions exist in a number of ILO Conventions and
that the country would have to indicate in its reports under Article 22 the
reasons for the exclusions, which would be reviewed by the Committee of Experts
on the Application of Conventions and Recommendations. It is also noted that
before any such exclusion can be made, consultation with the representative
organizations of workers and employers would be necessary, as provided for under
Point 6(2).
Qu. 4 |
|
Should the term "woman" to whom the instruments apply mean any female person, whether married or unmarried, and the term "child" mean any child whether born of marriage or not? |
Total number of replies: 106.
Affirmative: 93. Algeria, Angola, Argentina, Australia, Austria, Bahrain, Barbados, Belarus, Belgium, Benin, Botswana, Brazil, Bulgaria, Cambodia, Cameroon, Canada, Central African Republic, Chad, Chile, China, Colombia, Comoros, Congo, Costa Rica, Croatia, Cuba, Cyprus, Czech Republic, Denmark, Ecuador, El Salvador, Estonia, Ethiopia, Finland, France, Germany, Ghana, Guyana, Honduras, India, Indonesia, Islamic Republic of Iran, Italy, Jamaica, Japan, Kenya, Republic of Korea, Latvia, Lithuania, Luxembourg, Malaysia, Mali, Mauritius, Mexico, Republic of Moldova, Mozambique, Namibia, Netherlands, New Zealand, Nicaragua, Niger, Norway, Oman, Peru, Philippines, Poland, Portugal, Romania, Russian Federation, San Marino, Saudi Arabia, Seychelles, Slovakia, Slovenia, South Africa, Spain, Sri Lanka, Suriname, Sweden, Switzerland, Tajikistan, Thailand, Togo, Trinidad and Tobago, Turkey, Ukraine, United Arab Emirates, United Kingdom, United States, Uruguay, Venezuela, Viet Nam, Zimbabwe.
Negative: 8. Egypt, Jordan, Morocco, Papua New Guinea, Pakistan, Qatar, Syrian Arab Republic, Tunisia.
Other: 5. Greece, Hungary, Kuwait, Lebanon, Myanmar.
Algeria. If it means a woman who has her own social insurance.
Argentina. Adopted children should also be covered.
Australia. The instruments should apply to all female persons. To determine eligibility according to whether the woman is married or the child is born of married parents would constitute discrimination on the basis of marital status. We support the definition contained in Convention No. 103.
ACTU: Yes. "Child" should also include adopted children.
Azerbaijan. Azerbaijan Trade Unions Confederation: Yes.
Bahrain. It would be preferable to specify "working woman".
Barbados. To structure the instrument differently would be discriminatory.
Belgium. To ensure non-discrimination on the basis of civil status. If such a definition is problematic within the Convention, it could be placed in the Recommendation.
Brazil. CNC: No.
CNF: Yes. In order to avoid discrimination.
CNI: No. Other factors should be taken into account in these definitions.
Cambodia. Every woman, married or not, has the duty to take care of her child.
Canada. "Woman" must apply to any female person regardless of her marital status. "Child" must apply to any child regardless of the circumstances of its birth.
CEC: Yes. Retain the definition in Convention No. 103, making more precise the employed status of the woman rather than referring to woman in general. Include the notion of the adopted child.
Central African Republic. This term should be restricted with regard to single mothers.
Chile. With regard to the principle of equality before the law and of no arbitrary discrimination.
CPC: Yes.
Colombia. CGDT: Yes.
Comoros. A wide definition of "woman" and "child" would eliminate certain national restrictions which hinder maternity protection.
Congo. There must be no discrimination in this regard.
Denmark. FTF: A new Convention should also include men's right to leave.
LO: A new Convention should also include men's right to leave and men's reproductive ability should also be protected.
Dominica. CSA: Yes. With the increase in single-parent families, all child-bearing females and children from both inside and outside of marriage should be included.
DAWU: Yes.
DTU: Yes.
WAWU: Yes.
Ecuador. The term "woman" should apply to any person of the female gender, irrespective of colour, religion, social status, political conviction, etc., or marital status. The term "child" must apply to children of both sexes, whether born of marriage or not.
CONAMU: "Woman" should mean any person of the female sex, irrespective of her civil status, and the term "child" should mean the son or daughter of women workers.
UGTE: Yes. Maternal responsibilities transcend the legal status of the mother and child.
Egypt. "Woman" should mean a woman officially registered and legally recognized as married; and "child", a child born of a legal marriage.
Estonia. Estonian Association of Trade Unions: Yes. A woman's marital status is not important.
Ethiopia. The definition should indicate that the instrument refers only to women workers.
Finland. There is no acceptable reason to place women or children in a different position on the ground of family relations in matters concerning maternity protection.
France. CFTC: Yes. Definitions should be as wide as possible to take into account all situations.
Ghana. All categories of female persons and every child, whether born to married couples or not, should be covered.
GEA: Yes. Any female person, whether married or not, needs equal protection from the law.
TUC: Yes. The health of the woman and child is what matters, not their status.
Greece. The term "child" should mean any child, whether natural or adopted.
Guyana. The birth of children to unmarried parents is widespread.
Hungary. The definition contained in Convention No. 103 should be maintained.
India. AITUC: Yes. There should be no discrimination on the basis of civil or marital status.
Bharatiya Mazdoor Sangh: Only married women should be covered by this instrument. Unmarried women getting pregnant should not get the benefits of this instrument.
Indian National Trade Union Congress (INTUC): Yes. As today lifestyles have changed, there are single mothers.
Indonesia. "Woman" and "child" as defined in Article 2 of Convention No. 103.
APINDO: Yes.
Islamic Republic of Iran. In social security law, the term "insured women" is applied to all employed women, whether married or unmarried.
Iraq. General Federation of Trade Unions: Yes.
Jordan. "Woman" should only mean a female married person; and "child", a child born of marriage.
Amman Chamber of Industry: No. Only married female persons and children born of marriage should be protected, in deference to our traditions.
Federation of Jordanian Chambers of Commerce: "Child" should only mean a child born of marriage.
General Federation of Jordanian Trade Unions: Yes.
Kuwait. "Woman" should include a defined age or age group. "Child" should mean a child born of marriage.
Lebanon. "Woman" should mean any female person, whether married or unmarried. However, whether foreign women workers or children born out of wedlock are included should be left to Members to determine.
Malaysia. MEF: No. To specifically mention "whether married or unmarried" or "born of marriage or not" would encourage immorality.
Mali. Age limits should be determined for girls and women.
Morocco. "Woman" should mean a married woman and "child", a child born in wedlock.
FCCIS: Refer to national legislation.
Democratic Confederation of Labour (CDT): Yes.
Myanmar. In Myanmar, the maternity leave rules apply to any employed mother working in public services.
New Zealand. The Government agrees with the provision of universal coverage, as long as Members may put in place exclusions when they deem it appropriate.
NZCTU: Yes.
Niger. Retain the generic term woman, without distinction according to civil status.
Oman. To extend benefits and cover all categories.
Pakistan. Such provision would be construed as encouraging birth of children outside of wedlock, which is against many cultures and religions.
PNFTU: In Islam, a child born to an unmarried woman is "illegitimate". Such a woman should not be entitled to the benefits of the Convention.
Papua New Guinea. Under national law, a woman worker must be at least 16 years old.
Peru. Marital status is irrelevant to the present Convention.
Philippines. Marriage should not be a prerequisite to maternity protection.
Portugal. Differences in treatment according to civil status would constitute discrimination. Values to be protected through maternity leave should not be dependent on the fact that a woman is married or that a child is born to people that are or are not married.
UGT: Any discrimination against pregnant women on the grounds of their civil status is intolerable or between children born within or outside wedlock.
Qatar. "Woman" should mean "a working married woman".
Romania. The meaning of the term "child" should include "and every child for whom an employed person is responsible, including through custody, family placement and adoption".
Saudi Arabia. Because "protection" involves only the pregnant woman and the child.
South Africa. No discrimination on the basis of marital status should be allowed.
BSA: Yes.
Spain. These terms should not be questioned; they constitute an achievement reached in earlier Conventions. Maternity protection should not be restricted by such considerations.
CIG: No. The wording contained in Convention No. 103 is more specific.
Suriname. ASFA: In line with the principle of non-discrimination with respect to all women workers and children.
Sweden. The new instruments should promote the common responsibility of parents for their children and, accordingly, should also include fathers and parents of adopted children. Parents' rights can be defined in a separate second part of the Convention, for separate approval. See General Observations.
Syrian Arab Republic. The law provides protection for legitimate marriages and to permanent contracts of employment in both public and private sectors. The child is protected by the Convention on the Rights of the Child.
Trinidad and Tobago. NATUC: Yes. All women, whether they are married or not, experience similar discrimination from employers when they are pregnant. All children are born equal and have equal rights.
Tunisia. "Woman" should mean any married female person, and "child" should mean any child born of marriage.
Turkey. Age limits for each category may be appropriate for precision.
TISK: The purpose of the Convention is to protect married or single women and children born in and outside marriage.
United Arab Emirates. Yes for the term "woman"; for "child", there are legal problems for a woman who bears a child without legal marriage.
United Kingdom. The main concern should be to protect the health and safety of the mother and child, regardless of their status.
United States. Whether a pregnant woman is married or unmarried should not be a consideration as to whether she should receive protections to safeguard her health or that of her child. Any woman who is working is providing for the security of herself or her family. To risk her health is to risk that economic security. A child remains a child with essential minimum health and safety needs regardless of the marital status of his or her biological parents, so the Convention should not make a distinction on this basis.
Viet Nam. It is a question of the rights of women and children. The Convention should not discriminate against any female worker or any child.
Zimbabwe. ZCTU: The Convention is for all women.
A very strong majority of replies from governments, employers' and workers' organizations affirmed that "woman" should mean "any female person, whether married or unmarried", and "child" should mean "any child whether born of marriage or not".Several replies proposed enumerating a list of prohibited grounds of discrimination as in Article 2 of Convention No. 103 which specifies "age, nationality, race, or creed" as grounds upon which no distinction can be made. The new provision, which is drafted as Point 5 of the Proposed Conclusions does not substantively alter the definition contained in Article 2 of Convention No. 103 and the reference to civil status was to avoid any ambiguity concerning the civil status of the woman or child. As drafted, the definition applies in the broadest sense to "any female person," and any other distinctions would be implicitly prohibited.
The value of ensuring the health of all women workers and their children, without any discrimination based on civil status, was emphasized strongly in many replies. However, a significant number of those who objected to the proposed definition stated that the terms "woman" and "child" should mean only married women and children born of marriage in accordance with the laws and beliefs in those countries. Limiting the definition according to civil status would be inconsistent with the established approach first taken in the Maternity Protection Convention, 1919 (No. 3), where the term "woman" signifies "any female... whether married or unmarried," and the term "child" signifies "any child whether legitimate or illegitimate" and maintained in Convention No. 103 with very similar wording. It should be noted that the definition of "child" in the United Nations Convention on the Rights of the Child makes no distinction according to civil status. Point 5 as drafted emphasizes the principle, supported strongly in the replies, that where the health and safety of an employed woman and her child are at issue, civil status should not be considered.
A few replies suggested that the term defined be "working woman" and one suggested that "child" should mean the son or daughter of a working woman. The Office notes that Point 6 of the Proposed Conclusions, relating to scope, states that "The Convention should apply to all employed women."
Some replies proposed that the definition of "child" should include adopted children, as is the case in some national legislation. The Office notes that the inclusion of adopted children would broaden the scope of the Convention, which provides maternity protection for employed women with regard to childbearing, rather than child rearing.
Other replies raised questions regarding the coverage of workers who had not accrued a minimum number of hours of work or period of service, who were not citizens, or who had not reached a certain age. These questions usually arise in conjunction with qualifying conditions for cash and medical benefits normally prescribed in national legislation which are discussed in the commentary under Questions 8 and 9(1).
III. Content of a Convention
Maternity leave
Qu. 5(1) |
|
Should a woman to whom the Convention applies, 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 12 weeks? |
Total number of replies: 105.
Affirmative: 93. Algeria, Angola, Argentina, Australia, Austria, Barbados, Belarus, Belgium, Benin, Botswana, Brazil, Bulgaria, Cambodia, Cameroon, Canada, Central African Republic, Chad, Chile, China, Colombia, Comoros, Costa Rica, Croatia, Cuba, Cyprus, Czech Republic, Denmark, Ecuador, Egypt, El Salvador, Estonia, Ethiopia, Finland, France, Germany, Ghana, Guyana, Honduras, Hungary, India, Indonesia, Islamic Republic of Iran, Italy, Jamaica, Japan, Kuwait, Latvia, Lithuania, Luxembourg, Mali, Mauritius, Mexico, Republic of Moldova, Morocco, Mozambique, Myanmar, Namibia, Netherlands, Nicaragua, Niger, Norway, Pakistan, Papua New Guinea, Peru, Philippines, Poland, Portugal, Qatar, Romania, Russian Federation, San Marino, Seychelles, Slovakia, Slovenia, South Africa, Spain, Sri Lanka, Suriname, Sweden, Switzerland, Syrian Arab Republic, Tajikistan, Thailand, Togo, Trinidad and Tobago, Tunisia, Turkey, Ukraine, United Kingdom, United States, Uruguay, Venezuela, Viet Nam.
Negative: 6. Bahrain, Jordan, Republic of Korea, Malaysia, Oman, United Arab Emirates.
Other: 6. Congo, Kenya, Lebanon, New Zealand, Saudi Arabia, Zimbabwe.
Algeria. It would be advisable to foresee a progressive approach given the problems that certain countries might face, especially developing countries.
Argentina. CGT: Encouragement should be given to extending this period to 16 weeks.
Australia. This provision should apply in accordance with the exclusions provided in Question 3(1).
Austria. The prospective mother should be entitled to be excluded entirely from work, both before and after confinement (i.e. employment should be declared inadmissible during this period). The term "leave" could be replaced by "maternity release from work".
Austrian Confederation of Trade Unions (ÖGB): Yes. Recommendation No. 95 specifies a period of 14 weeks and this should be incorporated in the Convention and made binding.
Azerbaijan. Azerbaijan Trade Unions Confederation: Yes.
Bahrain. The leave determined above is too long. It should be left to the determination of the laws of every Member.
Barbados. Existing legal position.
Belgium. As an absolute minimum.
CNT: A provision which encourages those countries which currently provide less than the 12-week minimum to progressively extend leave to 12 weeks could improve the situation.
Botswana. Minimum of 12 weeks is reasonable.
Cambodia. This is the minimum required for recuperation following childbirth.
Cameroon. Leave should be provided before and after confinement.
Canada. CLC: Yes. Twelve weeks would be an absolute minimum. The period recommended in a revised ILO Convention should be raised to 18 weeks.
Chile. A medical certificate or a document issued by any other legally competent professional.
Comoros. As a strict minimum.
Congo. It is desirable that this duration be extended to 15 weeks to permit the employed woman to take care of her child until the age of three months.
Costa Rica. Twelve weeks of maternity leave is a minimum safeguard which should be available to every pregnant woman.
Croatia. The entitlement to maternity leave should be not less than 16 weeks. One reason for revising the Convention should be the extension of the maternity leave period.
Cyprus. A period of 14 weeks could also be envisaged in view of the clear trend for extension of leave beyond 12 weeks.
Czech Republic. MK OS: The minimum duration of maternity leave should be raised to more than the 12 weeks so far guaranteed by Convention No. 103.
Denmark. LO: The possibility of extending the period of maternity beyond 12 weeks should be examined.
Dominica. CSA: Yes.
DAWU: Yes.
DTU: Yes.
WAWU: Yes. Not only should this provision apply to women, but to her spouse or partner. Extra help is needed to receive the child.
Ecuador. The medical certificate is essential, in that it indicates that both the mother and the child are under specialist supervision. Twelve weeks are adequate.
CONAMU: Yes. The ILO should establish supervisory mechanisms to ensure this right is respected, with employers incurring a fine as a penalty for non-respect. The period of maternity leave should be independent of holidays to ensure that the employer cannot reduce the maternity leave if the confinement occurs during holiday leave.
National Federation of Chambers of Industry of Ecuador: The main requirement that a medical certificate confirming the state of pregnancy and the approximate date of birth be issued should be maintained.
UGTE: No. The woman should have the right to the 14 weeks' leave, even if confinement occurs earlier than the presumed date. In the event of miscarriage, the woman should be entitled to at least two weeks' compulsory leave.
El Salvador. This is a practical time period.
Estonia. The period of maternity leave should be not less than 14 weeks.
Estonian Confederation of Employers and Industry: Yes.
Estonian Association of Trade Unions: Yes. Maternity leave should be not less than 14 weeks as provided by the EC Social Charter.
Finland. TT, LTK and Federation of Finnish Enterprises: A Convention should not be adopted. The 12-week period could be included in a Recommendation.
Central Organization of Finnish Trade Unions (SAK), Finnish Confederation of Salaried Employees (STTK) and Confederation of Unions for Academic Professions (AKAVA): The possibility of extending the leave to 16 weeks should be seriously considered.
France. National Council of French Employers (CNPF): No. Set a shorter minimum duration.
CFDT: Yes. To avoid pre- and postnatal illness and to strengthen mother-child relations to prevent mistreatment.
CFTC: Yes. The absolute minimum.
Ghana. NCWD: Yes. If the child is declared medically unwell, the mother must be allowed time off. Ideally, provision should be made for extra time off until the child is 1 year old and the mother should not suffer penalties for absenteeism or loss of job.
GEA: Yes. 12 weeks should be the minimum period for confinement.
TUC: Yes. The current 12 weeks need to be improved in view of the emphasis on breastfeeding for six months.
India. AITUC: No. In order to facilitate breast feeding for the first six months that are considered crucial for a child's growth, six months' minimum maternity leave should be allowed to working women.
Hind Mazdoor Sabha (HMS): Yes. In rural areas in India, children are delivered at home by a midwife. In such instances, production of a medical certificate cannot be a hard and fast rule. A woman should enjoy protection by the mere fact that she is pregnant and that the employer has learned of it regardless of the means.
Iraq. General Federation of Trade Unions: Yes.
Japan. JTUC-RENGO: A woman should not necessarily have to submit a medical certificate.
Jordan. General Federation of Jordanian Trade Unions: Yes.
Kenya. Members ratifying the Convention should be free to set leave for a minimum period of ten weeks, for example.
Republic of Korea. Admitting that a 12 week-long maternity leave should be provided to meet the principle of maternity protection, the varying traditions and conditions among member States should be fully considered. A more flexible standard should allow countries, which are trying to realize the ideal of the Convention in the face of restrictions caused by their real situations, to ratify the Convention. It is much more important to promote ratifications and stimulate technical discussions on application of the standard than to maintain rigid standards thereby keeping member States away from the Convention.
Federation of Korean Trade Unions (FKTU): Yes.
Lebanon. A minimum of 12 weeks' maternity leave, as stipulated in Convention No. 103, may be one of the reasons that prevented ratification by many countries. It might be advisable for the new instrument to allow for shorter leave periods on economic or financial grounds when member States deem that their economic and financial circumstances demand it. The length of this leave lies at the centre of the proposed instruments and affects practically all their provisions.
Lithuania. Confederation of Lithuanian Entrepreneurs/Employers: Yes. 12 weeks is the bare minimum. In developed countries, the leave is much longer.
Malaysia. Twelve weeks' maternity leave is too long and would discourage employers from employing women.
MEF: No. Some countries provide less than 12 weeks and entitlement should remain at the existing level.
MTUC: Yes.
Mauritius. MEF: Yes. For developing countries, 12 weeks is adequate.
Mexico. This duration could be excessive in some countries.
Mozambique. The period of leave should be determined by national legislation and in accordance with the objective conditions of each country, with the Convention establishing the minimum.
Namibia. NEF: Yes. Twelve weeks is the minimum period, if there are no complications.
National Union of Namibian Workers (NUNW): Yes. But taking into consideration complications which might arise at any time.
Netherlands. FNV: The wording "at least 12 weeks" [as in Article 3(2) of Convention No. 103] is preferable to "not less than 12 weeks". Article 3(4) of Convention No. 103 should be retained in the new Convention.
New Zealand. It is more appropriate to provide for a period of parental leave. The requirement of a medical certificate may be a barrier where prenatal care and attendance at birth may be provided by a medical professional who is not able to issue a medical certificate, e.g. midwives. The form of certification should be determined according to national laws and practice.
NZCTU: Some form of certification consistent with national law and practice should be provided by a woman before she is entitled to take 12 weeks' leave.
Oman. Maternity leave must not exceed the limit that would affect the economy and paralyse production forces. Maternity leave for 45 days is reasonable.
Peru. CUT: The possibility of extending the leave period in accordance with national circumstances can be left to collective bargaining.
Philippines. A maximum of eight weeks' maternity leave as practised in our country is deemed sufficient.
Qatar. Provided that this period includes a paid leave of not less than one month from the date of confinement. There should be exceptions as regards duration and distribution of the maternity leave.
Romania. Maternity leave should be increased to 18 weeks.
Saudi Arabia. The period of maternity leave depends on national legislation.
Slovakia. As the legislative minimum.
South Africa. The entitlement should be unconditional, irrespective of whether or not they produce a medical certificate.
BSA: The 12-week period is in line with South African legislation. However, a 12-week period may not be feasible in all countries.
Sweden. A prescribed minimum period with the possibility of extension may be a suitable construction.
Switzerland. UPS: No. A 12-week period is too rigid for an international instrument.
ASM: Maternity leave should be settled by the social partners, not by the law.
VSA: Yes. A minimum leave period of 14 weeks would be preferable and an improvement on the existing provision of Convention No. 103, although this could discourage countries from ratifying the new revised Convention.
Syrian Arab Republic. The Convention should provide that maternity leave be granted at the beginning of the ninth month of pregnancy.
Turkey. TÜRK-IÔ: According to European standards, it should be increased to 16 weeks.
United Kingdom. This is the minimum period essential to guarantee the health and welfare of the mother and child at around the time of the birth. The United Kingdom could accept 14 weeks.
United States. As long as the entitlement is flexible to meet the pregnant woman's needs and not a fixed, compulsory period.
USCIB: No. The need for maternity leave should be a medical determination made by the woman and her doctor. Because medical leave needs will vary among women depending on their health circumstances, and in most instances will be less than 12 weeks, any leave specified by law should be part of a family and medical leave law covering a variety of maternity, parental, family and related circumstances.
Venezuela. Venezuelan Workers' Confederation (CTV): This should be the minimum period. A longer period should be granted if necessary according to medical opinion.
Viet Nam. It is the minimum duration to protect the health of mother and child.
Zimbabwe. Preferably not less than 14 weeks.
ZCTU: Yes.
Qu. 5(2) |
|
Should a Member which ratifies the Convention examine periodically, in consultation with the most representative organizations of employers and workers, the possibility of extending, as appropriate, the period of maternity leave referred to above? |
Total number of replies: 103.
Affirmative: 78. Algeria, Angola, Australia, Austria, Barbados, Belarus, Belgium, Benin, Botswana, Cambodia, Cameroon, Canada, Central African Republic, Chad, Chile, China, Colombia, Comoros, Congo, Croatia, Cuba, Cyprus, Czech Republic, El Salvador, Estonia, Ethiopia, Finland, Germany, Ghana, Greece, Guyana, Honduras, India, Indonesia, Islamic Republic of Iran, Italy, Jamaica, Japan, Kenya, Republic of Korea, Kuwait, Latvia, Lithuania, Luxembourg, Malaysia, Mali, Mauritius, Republic of Moldova, Morocco, Mozambique, Netherlands, New Zealand, Nicaragua, Niger, Norway, Pakistan, Papua New Guinea, Peru, Philippines, Qatar, Romania, Russian Federation, San Marino, Slovakia, Slovenia, South Africa, Spain, Sri Lanka, Suriname, Thailand, Trinidad and Tobago, Turkey, Ukraine, United Arab Emirates, United States, Uruguay, Venezuela, Viet Nam.
Negative: 13. Argentina, Bahrain, Brazil, Ecuador, Egypt, France, Jordan, Namibia, Oman, Switzerland, Syrian Arab Republic, Tajikistan, Tunisia.
Other: 12. Bulgaria, Costa Rica, Denmark, Hungary, Lebanon, Mexico, Portugal, Saudi Arabia, Seychelles, Togo, United Kingdom, Zimbabwe.
Argentina. Unnecessary. In cases of illness of the mother or child, the appropriate type of leave could be used.
CGT: See 5(1).
Austria. Unless a considerably longer period is already laid down by law.
ÖGB: Maternity leave could, in principle, be extended to at least 16 weeks. This should be stipulated in the Recommendation.
Azerbaijan. Azerbaijan Trade Unions Confederation: Yes.
Belgium. The increase in leave should not negatively affect equality of treatment. Rather than granting too long a leave to the woman, parental leave could be provided for either parent.
CNT: Extensive maternity leave may compromise women's reintegration into the labour market. Setting a maximum duration for maternity leave is justified because the cash benefits provided during long leave periods are generally insufficient to achieve the protection intended in the ILO instruments.
Botswana. This will allow for flexibility in the revision of the period for maternity leave.
Brazil.
CNF: Yes. With account being taken of the special situation of each Member.
CNC and CNI: Any alteration of the minimum standard should be the result of collective bargaining.
Bulgaria. Ministry of Labour and Social Policy: Yes; Ministry of Health: No.
Canada. The Convention should require consultations on possible legislative amendments.
CEC: No. This point is superfluous within the framework of a Convention.
CLC: Yes.
Central African Republic. Taking into account the social realities of each country.
Chile. This may not necessarily involve a reform of legislation, but may be the subject of an agreement between the parties. Due consideration should be given to the principle of joint family responsibilities, as contained in Convention No. 156.
CPC: No. The stability of the standard is essential in the labour market.
Colombia. This point must be freely decided by each Member ratifying the Convention.
Congo. In accordance with national laws and regulations and the level of development of the infant care facilities that exist in each country.
Costa Rica. The length of maternity leave should be specified by national legislation, which should also allow the possibility of consultations with the most representative employers' and workers' organizations regarding the possibility of extending it.
Cyprus. Tripartite consultations are an effective means of taking into account national conditions in fixing the period of leave.
Denmark. It would be very demanding if Members regularly had to examine the possible extension of maternity leave and report this to the ILO.
DA: Reporting should not be required.
Equal Status Council, FTF and LO: The results of the examinations should appear in the national reports.
Dominica. CSA: Yes.
DAWU: The word "periodically" needs to be more specific.
DTU: Yes.
WAWU: Yes.
Ecuador. Only when the country has experienced internal and external changes which justify such a modification.
CONAMU: Yes. Periodic examination is essential to extend the length of the leave. Consultations should include male and female workers.
National Federation of Chambers of Industry of Ecuador: It is not advisable to create expectations which could result in pressure on governments and employers.
CEDOC: Yes.
UGTE: Yes. This periodic revision is necessary in view of the economic and social changes taking place in each country.
Egypt. Excessive maternity concerns might refrain employers from engaging women. The period of maternity leave must be determined by law.
Egyptian Trade Union Federation: Yes. The possibility of extending the period of maternity leave would not be compulsory but be applied, as appropriate, to avoid any discrimination in the employment of women.
Estonia. If there is a possibility of extending the period of maternity leave.
Ethiopia. To be considered in line with the country's socio-economic development. The consultation should also consider the option of reducing the period of the maternity leave when the situation demands.
Finland. Yes, when due to new scientific knowledge or social developments, there is reason to reassess the length of leave. The length of leave must not become a factor of discrimination against women.
TT, LTK, Federation of Finnish Enterprises and KT: No.
France. CNPF: No. To be set by member States.
CFDT: Yes.
French Confederation of Executive Staffs (CFE-CGC): Yes.
CFTC: Yes. Supplementary weeks of postnatal leave should be encouraged.
CGT-FO: Yes.
Germany. BDA: No. There should be no such obligation to carry out regular examinations.
Ghana. The period of maternity leave should be extended as when necessary.
TUC: Yes. Family support systems are vanishing, thus it is imperative that consultations be held periodically to consider extending the maternity leave.
Honduras. COHEP: No. The consultation should take place within the framework of collective agreements.
Hungary. Member States, where the maternity leave is already more than 12 weeks, should not be subject to such obligation.
India. AITUC: Yes. This is considered necessary in order to affect periodic improvements in maternity protection.
Bharatiya Mazdoor Sangh: Yes. Member States should be free to extend maternity leave beyond that prescribed by the Convention to suit each country's needs and capacity.
National Front of Indian Trade Unions: Work situations vary from sector to sector. Leave should be extended to 17 weeks, subject to the country's economy. Such benefits should be restricted to two children to check the population explosion in developing countries.
Indonesia. Maternity leave can be extended as appropriate to be determined by the competent authority according to the health of the women concerned.
Islamic Republic of Iran. If such extension has been provided in the Convention.
Iraq. General Federation of Trade Unions: Yes.
Italy. CONFINDUSTRIA: Should be handled through collective bargaining or national legislation.
Jamaica. JEF: Yes, if the extension is without pay.
Japan. To ensure sufficient flexibility, "periodically" should be replaced by "as necessary".
NIKKEIREN: Expert medical opinion has confirmed that 12 to 14 weeks of maternity leave is reasonable. Periodic examination with a view to extension is unnecessary.
Jordan. Federation of Jordanian Chambers of Commerce: Yes.
General Federation of Jordanian Trade Unions: Yes.
Kuwait. The extension of leave depends on the conditions in each State, concerning capacities and resources in relation to women workers.
Lebanon. This should be left to member States to determine in accordance with their economic and social conditions. Consideration should be given to allowing countries that cannot implement a 12-week maternity leave to determine a shorter leave which would be increased when circumstances allow. Such countries would be required to include in their reports to the Office the reasons which prompted them to resort to such an arrangement and the measures they are taking to increase the period of maternity leave, as appropriate.
Lithuania. Confederation of Lithuanian Industrialists: No.
Malaysia. When deemed appropriate and necessary.
MEF: No. If maternity leave is already reasonable and long, there is no need to review upward only. Review can also be downward.
Mauritius. MEF: No. Extension of leave is not advisable.
Mexico. The meaning of "appropriate" should be determined. Medical, technological and social advances currently mean better care for mothers and their children, which would tend to have the effect of reducing leave, rather than extending it.
Republic of Moldova. Postnatal effects can vary and provisions should not be restricted to one set period.
Mozambique. According to the conditions of each country.
OTM: This could be achieved only in countries with strong and stable economies.
Namibia. NEF: Yes.
NUNW: Yes. To keep the representative organizations of workers informed of changes taking place.
Netherlands. There is no objection to periodic research into the desirability of extending the period of 12 weeks.
New Zealand. Member States should regularly examine maternity leave provisions in their own countries. Parties to an employment contract are free to negotiate a longer period of leave.
NZCTU: Member countries should be required to regularly examine maternity protection laws in consultation with workers' and employers' organizations with a view to extending entitlements.
Pakistan. Twelve weeks is considered sufficient. A collective agreement to further extend maternity leave would be considered appropriate.
Papua New Guinea. In order to iron out the disparities of such an entitlement to women workers in both sectors of employment.
Peru. CUT: The risk of overprotection and its negative impact on women's employment should be taken into account. The periodic review should take place annually.
Philippines. Extending maternity leave may be appropriate in due time, after consultations so warrant.
Poland. Confederation of Polish Employers (KPP): Yes.
All-Poland Trade Union Alliance (OPZZ): Yes.
Portugal. This provision should be moved to the Recommendation.
Portuguese Confederation of Farmers (CAP): Yes. The increase in maternity leave cannot be unlimited without prejudicing women's access to employment and career development.
CIP: No. The absence of a worker from an enterprise, even if there is no increase in direct costs, always impacts on its normal operations and may affect levels of productivity.
CGTP: Yes.
UGT: The possibility of periodic re-examination through social dialogue in each State should be intensified and extended to other areas.
Romania. (Tripartite) collective agreements could contain special arrangements aimed at organizing consultations with a view to increasing the duration of maternity leave for certain categories of employees and enterprises. Current trends encouraging breastfeeding for as long a period as possible should be taken into account.
Russian Federation. In accordance with each country's economic possibilities.
Saudi Arabia. Depending on the national legislation.
Seychelles. Reword this clause by allowing either party to initiate any proposal thereof.
South Africa. BSA: No. Twelve weeks is sufficient. As it is, many SMEs will have difficulties in accommodating a 12-week maternity leave period. Furthermore, individual collective bargaining affords employers and employees the opportunity to extend the period taking into account the financial, employment and practical realities in a particular enterprise or sector.
Spain. This point would be more appropriate for the Recommendation. Certain restrictions should apply to this type of revision.
CIG: Yes.
Suriname. ASFA: No.
Switzerland. If the leave provided in national legislation already exceeds 12 weeks, this provision is superfluous; if it is less than 12 weeks, such a provision will not cause it to be lengthened. On the other hand, the draft Convention could contain a non-regression clause so that countries providing more than 12 weeks of leave could not reduce the leave period.
UAPG: It is up to the social partners to consider.
VSA: Yes.
Togo. The 12-week minimum should be extended to 14 weeks.
Tunisia. Such an obligation could constitute an obstacle to ratification, as was the case with regard to Convention No. 103. The Convention should be limited to the minimum. Ratifying States may always provide better measures in their national legislation.
United Kingdom. It is important to ensure the arrangements are working. However, once a minimum reasonable period of maternity leave has been established, it may be more important to consider a wider range of options for promoting family-friendly employment policies and flexible working arrangements to help both parents combine work and family life.
United States. Medical research is continually discovering facts that have an impact on the quality and longevity of our lives. It is only logical to evaluate such research, including that which focuses on pregnancy and the unborn foetus, in terms of its relevancy in the workplace on an ongoing basis.
USCIB: No.
Uruguay. National Chamber of Commerce and Chamber of Manufacturers: No.
Zimbabwe. The Convention should set a maximum periodicity of three years for the consultations.
ZCTU: Yes.
Paragraph 1
A very strong majority of governments, employers' and workers' organizations replied affirmatively to this question which combined the entitlement to leave contained in Article 3(1) with the minimum 12 week leave period set in Article 3(2) of Convention No. 103.
There were three categories of replies to this question. A large number of governments and workers' organizations considered that 12 weeks should be an absolute minimum. Some suggested periods of 14, 16 and 18 weeks, citing Paragraph 1(1) of Recommendation No. 95, national legislation and EU Council Directive 92/85/EEC in support of their views. For other respondents, shorter periods of leave, such as six, eight or ten weeks, were considered sufficient. For some of these countries, difficult financial circumstances would make a 12 week leave period hard to achieve. The possibility of a progressive approach to reaching that level was proposed. Yet a few other replies suggested that the duration of leave should not be set in the Convention, but should be determined by national law or be decided by the woman and her doctor.
While a number of replies underlined the importance of requiring a medical certificate, reservations were expressed by a few that such a requirement could be difficult to meet in rural areas or in situations where prenatal care and attendance at birth are not necessarily provided by medical personnel authorized to issue such certificates. It was suggested that the type of certification be determined according to national law and practice.
A few countries also noted that their national law laid down additional conditions of eligibility for leave, such as a specified period of continuous employment, or submission of a written request for leave within a required notice period.
Taking into account the various views expressed, the Office has retained the 12 week minimum period in Point 7(1) of the Proposed Conclusions. It notes as well that Point 14 of the Proposed Conclusions contains a general provision concerning the implementation of the provisions of the Convention which provides for flexibility.
Paragraph 2
Most ILO member States currently grant maternity leave periods of more than 12 weeks and interest has been expressed in encouraging extensions beyond that minimum. A strong majority of governments and workers' organizations were in favour of providing for the periodic examination, in consultation with the most representative organizations of employers and workers, of the possibility of extending the period of maternity leave as appropriate.
Whether in favour of such a provision or not, many governments raised the point that any extension of the leave period would depend on national social and economic conditions. Indeed, the intent of this proposal was to provide such flexibility, while nonetheless encouraging periodic review of the situation at national level.
Equality of treatment was another major concern raised with regard to the length of the leave period. At issue was the question of whether an extension of the maternity leave period would result in discrimination in hiring and retention or jeopardize women's reintegration into the labour market. It was suggested that a longer period of leave might be provided in the form of parental leave available to either parent. Family-friendly employment policies and flexible working arrangements might also lessen the need for lengthier maternity leave. The Office notes that a periodic review- of the appropriateness of extending leave might include careful consideration of the impact of any extension with regard to these concerns.
Some respondents questioned whether periodic review could not result in shorter leave. It was suggested that, rather than including a provision for periodic review of the leave period with a view to possibly extending it, a non-regression clause could be included to prevent member States which provide more than 12 weeks leave from reducing that amount. In this regard, attention is drawn to Article 19(8) of the ILO Constitution.(9)
New points
In addition, Points 7(2) and (3) of the Proposed Conclusions have been drafted to respond to the concerns of Members who already provide more than 12 weeks of maternity leave and who voiced support for a longer leave period to be set in the Convention. As formulated, these Points would require Members at the time of ratification to specify the period of leave they provide and would provide the opportunity for them to notify the ILO of any extensions, thus undertaking an international obligation in this regard.
Among those who were not in favour of periodic review, some considered that inclusion of such a provision could create unjustified expectations. Collective bargaining was suggested by a number of respondents as an appropriate means to extend the leave period in sectors or enterprises where longer leave was warranted. One government stated that such a provision could be an obstacle to ratification. Another suggested shifting this provision to the Recommendation.
A number of replies understood periodic examination of the length of maternity leave to apply to individual cases. The intention of Question 5(2), however, was to provide for periodic national-level, tripartite examination of the maternity leave period provided for all employed women in national law and practice with a view to lengthening that period if appropriate. Additional leave for health-related reasons, provided to individual women on the basis of a medical certificate, is discussed under Question 7 below.
Given the large majority of affirmative responses, the Office has incorporated
the provision into Point 13 of the Proposed Conclusions, which addresses
the question of periodic review of both the length of leave and the amount or
rate of benefits, discussed under Question 9(2) below.
Qu. 6 |
|
(1)Should the leave referred to in question 5 above include
a period of compulsory leave? |
Paragraph 1:
Total number of replies: 106.
Affirmative: 78. Algeria, Austria, Bahrain, Barbados, Belarus, Belgium, Benin, Botswana, Brazil, Cambodia, Cameroon, Central African Republic, Chile, China, Colombia, Comoros, Congo, Croatia, Cuba, Cyprus, Czech Republic, Ecuador, Egypt, El Salvador, Estonia, Ethiopia, Finland, France, Germany, Ghana, Greece, Guyana, Honduras, India, Indonesia, Islamic Republic of Iran, Italy, Japan, Jordan, Kenya, Republic of Korea, Kuwait, Luxembourg, Mali, Mauritius, Morocco, Mozambique, Netherlands, Nicaragua, Niger, Norway, Oman, Pakistan, Papua New Guinea, Philippines, Poland, Portugal, Qatar, Russian Federation, San Marino, Saudi Arabia, Seychelles, Slovakia, Slovenia, Spain, Sri Lanka, Suriname, Switzerland, Syrian Arab Republic, Tajikistan, Thailand, Togo, Trinidad and Tobago, Tunisia, Turkey, Uruguay, Venezuela, Viet Nam.
Negative: 15. Angola, Australia, Chad, Jamaica, Latvia, Lithuania, Malaysia, Republic of Moldova, Namibia, New Zealand, Peru, Romania, Ukraine, United Arab Emirates, United States.
Other: 13. Argentina, Bulgaria, Canada, Costa Rica, Denmark, Hungary, Lebanon, Mexico, Myanmar, South Africa, Sweden, United Kingdom, Zimbabwe.
Paragraph 2:
Total number of replies: 92.
Affirmative: 76. Algeria, Austria, Bahrain, Barbados, Belarus, Belgium, Benin, Bulgaria, Cambodia, Cameroon, Canada, Central African Republic, China, Colombia, Comoros, Congo, Costa Rica, Cuba, Cyprus, Czech Republic, Ecuador, Egypt, El Salvador, Estonia, Ethiopia, Finland, France, Germany, Ghana, Greece, Guyana, Honduras, Hungary, India, Indonesia, Islamic Republic of Iran, Italy, Japan, Jordan, Kenya, Republic of Korea, Kuwait, Luxembourg, Mali, Mauritius, Mozambique, Netherlands, Nicaragua, Niger, Norway, Oman, Papua New Guinea, Philippines, Poland, Portugal, Qatar, Russian Federation, San Marino, Saudi Arabia, Seychelles, Slovakia, Slovenia, Spain, Sri Lanka, Sweden, Switzerland, Syrian Arab Republic, Thailand, Togo, Trinidad and Tobago, Tunisia, Turkey, United Arab Emirates, United Kingdom, Venezuela, Viet Nam.
Negative: 8. Angola, Botswana, Brazil, Pakistan, Peru, Suriname, Tajikistan, United States.
Other: 8. Chile, Croatia, Denmark, Jamaica, Lebanon, Mexico, South Africa, Zimbabwe.
Algeria. (1) Exclude any penalties for non-compliance if for medical reasons it is recommended that the woman continue her activity. (2) Yes for duration. Public health services should be consulted regarding distribution.
Argentina. Postnatal leave should be not less than 45 days.
CGT: (1) Yes. Leave should be compulsory and paid. (2) Yes.
UIA: No to (1)-(2). The provision in Question 5(1) is sufficient in an international instrument.
Australia. (1) A compulsory leave requirement could constitute discrimination on the basis of sex, pregnancy and family responsibilities, which are all prohibited in other ILO standards. Compulsory leave at any stage of a pregnancy operates to deny female employees the right to manage their pregnancy or family responsibilities and leave arrangements. A woman in good health should have the right to work. Consideration should be given to the health reasons for a "recommended" period of leave (e.g. six weeks following a normal birth). Any reduction in this recommended period of leave should be conditional on the production of a medical certificate so that women who wish to return to work and are healthy are able to do so.
Austria. The entire leave mentioned in Question 5 should be compulsory. Its minimum duration should be laid down in the Convention itself.
ÖGB: (1) No.
Azerbaijan. Azerbaijan Trade Unions Confederation: (2) Yes.
Bahrain. (1)-(2) The prescribed leave must be compulsory.
Barbados. (1) Six weeks after confinement is necessary.
Belarus. (1) The term "compulsory postnatal leave" should be used. (2) The Convention should specify the minimum period of compulsory postnatal leave.
Belgium. (1) This point might be shifted to the Recommendation. (2) Due consideration of compulsory prenatal leave.
Benin. COSI: (1) Maternity leave should be compulsory.
Botswana. (1)-(2) At least six weeks' postnatal leave should be compulsory.
Brazil. (2) The distribution of maternity leave must follow medical criteria.
CNC and CNI: (2) Yes.
CNF: (1) During the postnatal period. (2) No. The minimum period should be stipulated by national legislation.
Bulgaria. (1) Ministry of Labour and Social Policy: Yes. Ministry of Health and Ministry of Justice and European Legal Integration: No.
Canada. (1) There is no need to restrict a leave entitlement of 12 or more weeks by including a period of compulsory leave. (2) If included, the Convention and/or Recommendation should set minimum standards, but it should be up to each member State to determine the duration and distribution of the compulsory leave upon consultations with the organizations concerned.
CEC: (1) No. Such mandatory leave contravenes national legislation.
CLC: (1) Yes. Such a provision relieves women of pressure from employers not to take leave.
Chile. (1) These standards should be governed by public law relating to inalienable rights. Voluntary application for either party would not be consistent with the principle of maternity protection. (2) The Convention must establish minimum standards. If consultations with employers' and workers' organizations lead to improvements, then they should contribute to determining these.
CPC: It should be up to the woman to choose how to distribute the leave.
China. All maternity leave should be compulsory.
Colombia. (1) Legislation should stipulate the compulsory nature of all or at least part of it. (2) The views of health authorities and experts should be sought, analyses carried out, and legislation defined concerning these matters.
Congo. (2) In close collaboration with the occupational health services.
Costa Rica. (1) Maternity leave should be compulsory. (2) Its duration and distribution should be determined by national legislation, although the possibility should be left open for consultations with the most representative employers' and workers' organizations.
Croatia. (2) Duration of the compulsory leave should be determined by national legislation. Enlargement could be discussed, but only within legislative proceedings. Enlargement of compulsory maternity leave could result in discrimination against women in the labour market.
Croatian Associations of Employers: (2) Yes.
Confederation of Independent Trade Unions of Croatia (KNSH), Union of Autonomous Trade Unions of Croatia (SSSH), Croatian Association of Trade Unions (HUS), Federation of Croatian Trade Unions of Public Services (MATICA), and Coordination of Croatian Trade Unions of Civil Servants and Government Employees (KHSJSN): (2) Only after national legislation has determined a duration of at least than 12 weeks.
Czech Republic. MK OS: (1) It should amount to at least half the entitlement to leave stipulated by the Convention.
Denmark. (1) The principle of voluntary maternity leave should be maintained. A period of compulsory leave can, however, be accepted.
Equal Status Council: (1) Yes. (2) They should be laid down by statute as an individual right.
AC: (2) Yes.
DA: (1) Yes.
FTF: (1) Yes.
LO: (1) Yes. This may prevent pregnant women and women who have recently given birth from being forced to return to work earlier than desired.
Dominica. CSA: Yes to (1)-(2). Twelve weeks should be the recommended minimum. The ILO should recommend a minimum standard.
DAWU: Yes to (1)-(2).
DTU: Yes to (1)-(2).
WAWU: Yes to (1)-(2).
Ecuador. (1)-(2) The entire period must be compulsory.
CONAMU: (2) Yes.
National Federation of Chambers of Industry of Ecuador: (2) The periods of pre- and postnatal compulsory leave should be determined by national laws or regulations. The minimum duration of postnatal leave should be stipulated by law.
UGTE: (2) No. The whole period of leave should be compulsory.
Egypt. (2) Provided that compulsory leave is not less than 40 days.
El Salvador. (2) The duration of such leave should be obligatory. However, account should be taken of the recommendations of medical practitioners, as well as the occupational health services.
Estonia. Estonian Association of Trade Unions: (1) No.
Ethiopia. CETU: (1) No.
Finland. (1) Retain some flexibility with regard to leave.
TT, LTK and Federation of Finnish Enterprises: (1) No.
France. (1) The EU Directive includes two weeks of compulsory leave to be taken before and/or after the birth. (2) Eight weeks of compulsory leave are needed (two weeks before and six after).
CFDT: (2) No. Leave should be uniform, although specific circumstances should not be excluded.
CFE-CGC: (2) No. Maternal and child protection cannot depend on the outcome of negotiations. Legislative measures are necessary.
CFTC: (2) Yes. Legislation is needed to cover all employed women and to provide greater guarantees.
CGT-FO: (1) Yes. The total period of leave should be legally compulsory. (2) No. The duration of maternity leave should be set through national legislation.
Germany. (2) Legislation is necessary.
Ghana. (1) Compulsory leave should be granted when the employee is unwell and upon production of a medical certificate. (2) The duration and distribution of compulsory leave should be covered by legislation.
NCWD: (1) Any compulsory period per medical recommendation should not constitute part of the leave mentioned in Question 5.
GEA: (1) No.
Honduras. COHEP: (2) Only the minimum conditions should be laid down in the Convention.
Hungary. (1) Maternity leave is a basic right of the mother which, however, she may be obliged to exercise for the sake of the child. Under national law, a period of postnatal leave is compulsory.
India. (1) Compulsory postnatal leave should be spelled out clearly.
Bharatiya Mazdoor Sangh: (2) Minimum duration and distribution should be prescribed by the Convention. Beyond the minimum, they should be determined in each country.
National Front of Indian Trade Unions: (1) Yes. The total entitlement to prenatal leave should be compulsory.
Iraq. General Federation of Trade Unions: Yes to (1)-(2).
Italy. (1) Compulsory pre- and postnatal leave should be expressly regulated and not subject to derogations. This obligatory abstention, coupled with the related financial payment, should also apply in cases of adoption.
Jamaica. (1) No compulsory leave should be imposed on women. (2) To achieve similar standards, consensus on these matters would best be achieved by the ILO.
JEF: Yes to (1)-(2).
Japan. (2) They must be determined from a medical point of view that considers maternity protection.
JTUC-RENGO: (1) Compulsory maternity leave should be provided as in Convention No. 103, Article 3(2)-(3).
Republic of Korea. (2) To facilitate voluntary agreement.
Latvia. (1) National legislation provides women with the right to choose.
Lebanon. (1) Compulsory postnatal leave is a sound principle, regardless of the duration of the maternity leave. (2) The duration of postnatal compulsory leave should be determined in each country. Prenatal compulsory leave should be determined on the basis of a medical certificate or on request from the mother, supported by a medical certificate stating the expected date of her confinement.
Lithuania. Confederation of Lithuanian Entrepreneurs/Employers: (2) Yes. Everything must be agreed upon by the employer and the worker.
Lithuanian Workers' Union: Yes to (1)-(2).
Malaysia. Malayan Agricultural Producers Association (MAPA): Yes to (1)-(2). (1) A period of compulsory leave is necessary. It will be dependent on various factors, such as health of the woman, culture, etc.
MEF: Yes to (1)-(2).
Mali. (2) A minimum duration should be defined in the Convention.
Mauritius. Postnatal compulsory leave should preferably be at least six weeks long.
MEF: No to (1)-(2).
Mexico. The leave foreseen in Question 5(1) should be compulsory. In that case, only the distribution of leave would be determined in each country.
Morocco. Postnatal compulsory leave should last no less than six weeks.
FCCIS: Yes to (2).
CDT: Yes to (2).
Mozambique. (1) Irrespective of whether the child is born alive or dead.
OTM: (2) National health authorities should be included.
Namibia. NEF: Yes to (1)-(2). (1) At least four weeks before and after confinement.
NUNW: Yes to (1)-(2). (1) But the choice can still remain with the person concerned.
Netherlands. (1) The prohibition with regard to work, which is inherent in a period of mandatory maternity leave, must be imposed solely with regard to the employer and not with regard to employees.
New Zealand. In New Zealand, there is a presumption of mutual agreement about when leave shall occur, although in certain circumstances a medical practitioner has the right to determine a date when maternity leave should begin. An employer will only have the ability to require that the employee begin maternity leave where the employee is unable to perform her work due to safety concerns, or the absence of other adequate work. If the instrument provides a right to a particular period of maternity leave, it should allow employees and employers to agree to a return to work before the end of the available period of maternity leave. Such a decision must be a voluntary one, and not subject to duress.
NZEF: (1) Compulsory leave would be seen as paternalistic, overriding a woman's right to choose how much or indeed whether to take leave at all.
Nicaragua. (1) Under national law, it is obligatory to take the leave and obligatory for the employer to grant it.
Niger. (1) Several weeks before and after delivery.
Norway. (1) Under national law, exemptions may be granted to compulsory leave upon presentation of a medical certificate stating that it is better for the mother to resume work.
Pakistan. (1) The leave foreseen in Question 5(1) should be compulsory.
PNFTU: (1) No.
Peru. (1) The entire maternity leave period is obligatory.
CUT: Yes to (1)-(2). (1) At least six weeks' postnatal leave.
Philippines. (1) A compulsory leave of at least four weeks should be included. (2) Each country should determine the particular features of its compulsory leave.
Poland. KPP: (1) Existing wording should remain.
Portugal. UGT: (1) Part of the maternity/paternity leave period must not be subject to negotiation or waiver by the entitled person. This right should be made irrevocable by law. A period of postnatal leave should be compulsory. (2) On condition that there is no regression with regard to the six weeks' compulsory postnatal leave currently provided in the Convention.
Romania. (1) Many women may no longer be interested in mandatory pre- or postnatal leave. It is up to women to decide when and for how many days they might take leave.
National Council of Private Small and Medium-sized Enterprises: Yes to (1)-(2). (1) The possibility of either the employer or the mother renouncing maternity leave should be eliminated. (2) Medical recommendations must also be considered.
CSDR: Yes to (1)-(2).
San Marino. (1) The 12-week leave period should be compulsory. (2) The Convention may determine the distribution, taking into account WHO recommendations.
Saudi Arabia. (2) When such organizations exist.
Slovakia. (2) Consultations with the organizations of employers and workers and relevant state bodies should precede legal regulation.
South Africa. (1) Mothers should have the option to return earlier, but only with a medical certificate. (2) The Recommendation should include a figure of six weeks. It may be inappropriate to leave this matter entirely to member States.
BSA: (1) Probably. (2) Yes.
Spain. The wording of Article 3(2) of Convention No. 103, referring to the period of six weeks' compulsory leave, should not be amended.
Sri Lanka. Leave to be granted on medical advice.
Suriname. (2) Six weeks of compulsory postnatal leave should be maintained in accordance with Convention No. 103.
ASFA: (1) No. (2) Only on the advice of a physician.
Federation of Farm Workers (FAL): No to (1); yes to (2).
Sweden. (1) The provision in Article 3(2) of Convention No. 103 was a decisive obstacle to ratification by Sweden, where parental leave is a right but is not obligatory for parents. The Convention should provide that the employee is entitled to leave of absence, but shall not be compelled to take leave of a certain, predefined period. This implies a duty on the employer's part to grant leave. (2) If compulsory leave is introduced in the Convention, its duration and distribution should be determined in each country.
Switzerland. (2) This is best decided in each country, especially since the same objective (protection of health of mother and child) can lead to opposing views. This has been the experience in recent Swiss parliamentary debates.
UPS: (1) No. Unless there are medical reasons to the contrary, the woman should be free to choose. (2) The social partners should decide in their collective agreements.
VSA: (1) Yes. The provision of a compulsory leave period is the only way of ensuring that women are not subjected to pressure to forego leave "voluntarily". Such protection is particularly important for women with low earnings.
Syrian Arab Republic. (1) The compulsory period should be not less than 40 days.
Turkey. (1) Compulsory leave may be shorter than 12 weeks.
TISK: (1) The whole period of maternity leave should be compulsory.
TÜRK-IÔ: (1) Compulsory leave should be set in consultation with the concerned health authorities.
Ukraine. (1) Such leave should be added to the leave referred to in Question 5.
United Kingdom. (1) The United Kingdom is willing to accept a two-week compulsory leave period around the time of the birth, but would not wish to impose further restrictions on women taking their leave at the time most suitable to them. (2) Employers and employees and their respective organizations should be encouraged to agree these matters, wherever possible.
United States. Compulsory maternity leave would violate current national law(s). A woman and/or her physician should be able to choose how long she wishes, and is able, to work.
USCIB: The personal and economic decision to work should be the woman's and should not be dictated by the state.
AFL-CIO: (1) Compulsory leave discriminates against women based on pregnancy, childbirth, and maternity status.
Uruguay. National Chamber of Commerce and Chamber of Manufacturers. (2) Yes.
Venezuela. The compulsory period should be defined and extended in the light of circumstances.
Viet Nam. Twelve weeks should be the minimum compulsory period.
Zimbabwe. (1) Fathers/men should also contribute some of their leave days. (2) Also consider protection of the health of the family, including fathers.
ZCTU: Yes to (1)-(2). (1) In addition to the 12 weeks. (2) The minimum period should be set in the Convention. A country can then negotiate regarding the rest.
A strong majority of governments and employers' and workers' organizations indicated that maternity leave should include a period of compulsory leave. A period of compulsory leave of at least six weeks is currently provided in Article 3, paragraphs (2) and (3), of Convention No. 103.
Health protection was the most frequently mentioned reason for providing a period of compulsory leave. Several respondents stated that a period of compulsory leave would provide protection from employers' pressure on women to return to work before the leave entitlement had been exhausted.
Several replies did not support inclusion of a provision on compulsory leave in the Convention, referring for instance to the woman's right to decide when to return to work.
The proposal contained in Question 6(2) differs in three ways from Article 3(3) of Convention No. 103: it does not state a minimum compulsory period; it does not specify that the compulsory period should be prescribed in national laws or regulations; and it requires consultation with the social partners.
A large majority of governments and employers' and workers' organizations agreed that a determination should be made in each country of the duration and distribution of compulsory leave. However, a significant number of governments and workers' organizations suggested that a minimum period of compulsory leave be specified in the Convention or Recommendation. Some replies stated that the full (12-week) period of maternity leave should be compulsory. Others suggested that compulsory leave be limited to two, four, six or eight weeks or to the post-natal period. No clear consensus emerged, however, as to the length or distribution of the compulsory period.
Another group of governments as well as some employers' and workers' organizations stated that a period of compulsory leave should be provided for in national legislation, which was seen to provide more uniform protection than negotiations between the social partners. Only a small number of respondents stated that the duration and distribution of compulsory leave should be left to agreements between employers and workers.
Considering that the main rationale for a period of compulsory leave was health protection, several governments and an employers' organization suggested that the advice, not only of the social partners, but also of public health services, occupational health services or medical practitioners should be sought.
Because of the general support for the provisions contained in Questions
6(1) and (2), these have been included in Point 8(1) of the Proposed
Conclusions.
Qu. 7 |
|
In case of illness, complications or risk of complications arising out of pregnancy or confinement, should additional leave be provided on the basis of a medical certificate before or after confinement, as the case may be? |
Total number of replies: 106.
Affirmative: 88. Algeria, Angola, Argentina, Australia, Austria, Barbados, Belarus, Belgium, Benin, Botswana, Brazil, Bulgaria, Cambodia, Cameroon, Canada, Central African Republic, Chad, Chile, China, Colombia, Comoros, Congo, Croatia, Cuba, Cyprus, El Salvador, Estonia, Ethiopia, Finland, France, Germany, Ghana, Greece, Guyana, Honduras, India, Indonesia, Islamic Republic of Iran, Italy, Jamaica, Japan, Kenya, Republic of Korea, Kuwait, Latvia, Lithuania, Luxembourg, Malaysia, Mali, Mauritius, Mexico, Republic of Moldova, Morocco, Mozambique, Myanmar, Netherlands, New Zealand, Nicaragua, Niger, Oman, Pakistan, Papua New Guinea, Philippines, Poland, Portugal, Qatar, Romania, Russian Federation, Seychelles, Slovakia, Slovenia, South Africa, Spain, Sri Lanka, Suriname, Sweden, Tajikistan, Thailand, Togo, Trinidad and Tobago, Tunisia, Turkey, Ukraine, United Arab Emirates, Uruguay, Venezuela, Viet Nam, Zimbabwe.
Negative: 10. Bahrain, Czech Republic, Ecuador, Egypt, Jordan, Namibia, Peru, San Marino, Syrian Arab Republic, United States.
Other: 8. Costa Rica, Denmark, Hungary, Lebanon, Norway, Saudi Arabia, Switzerland, United Kingdom.
Algeria. After confinement.
Argentina. In cases of illness of the mother, ordinary sick leave should be used. If the child is ill, optional leave should be granted to the father or mother if this occurs more than six weeks after the birth.
Australia. This provision should be included in the Recommendation, together with Question 15(1). Australia supports this provision referring to "additional leave", which need not be maternity leave. If an employee has pregnancy or confinement complications, she should be entitled to use her sick leave, if desired.
Austria. ÖGB: Yes. The Convention should make such an extension of leave mandatory if a medical certificate indicates that this is necessary.
Azerbaijan. Azerbaijan Trade Unions Confederation: Yes.
Bahrain. Leave due to illness or complications arising out of pregnancy or confinement is considered to be "sick leave", which is separate from maternity leave and starts when the maternity leave is over.
Barbados. The maximum extension of maternity leave should be decided by individual countries. Thereafter, additional leave should be taken as sick leave. The granting of such leave should provide added job security. Some women have had to resign from jobs because of pregnancy complications.
Belgium. There should be no problem treating these cases as periods of illness. Assimilating them to maternity leave, however, could give rise to problems regarding compensation and protection from dismissal, for example. If necessary, this question could be partially or totally treated in the Recommendation.
Brazil. CNF: The respective salary as well as protection of employment must be ensured (if provided by national legislation).
Canada. In some jurisdictions, if after delivery, the medical condition of the mother or child prevents the employee from returning to work, a further period of maternity leave can be granted. At the federal level, these situations are covered under provisions for a leave of absence (distinct from maternity, maternity-related and/or parental leaves), where an employee becomes unable to perform an essential function and no alternative job is available.
CEC: It is inappropriate within the framework of a Maternity Protection Convention. This point touches upon the notion of the health of the employee and her capacity to work, which may not be linked to her pregnancy.
Chile. Member States should be left free to determine the type of leave. The involvement of health or social security systems may make allocation of sick leave, rather than supplementary maternity leave, appropriate for wage purposes.
China. Additional leave should be provided if complications are caused directly by pregnancy. Otherwise, there are no clearly defined criteria.
Colombia. If it is before, the incapacity should not affect the length of the leave. If the illness or complication occurs during the leave, legislation should provide for the possibility of additional leave on the basis of medical opinion.
CGDT: Definitely yes. In special cases affecting the health of the mother, maternity leave should be extended on the basis of a medical certificate. The respective legislation should establish sanctions for infringements of such standards.
Congo. Without prejudice to the employment contract.
Costa Rica. Whether or not the complications in question arise as a result of pregnancy, the woman should, on production of a medical certificate, be entitled to any leave she may require to maintain her health and that of her child.
Croatia. Yes, but the wording "as the case may be" should be excluded, since it is not clear who would determine it. National legislation should also provide for additional leave in the case of an illness of a child.
Cuba. Accidents or illnesses arising out of pregnancy, and also complications arising out of confinement, which necessitate a longer period of rest for the woman worker.
Czech Republic. Possible inclusion in the Recommendation.
Confederation of Entrepreneurial and Employers' Unions of the Czech Republic (UZSR): Complications arising more than six weeks before the birth should be dealt with through sickness insurance.
Denmark. The extent to which additional leave should be provided should be determined nationally.
LO: The possibility should be examined of laying down a minimum of protection with the EU Directive on pregnant women as a model.
Dominica. CSA: Yes. Provision should be made for the extension of that period because of post-confinement illnesses of the mother or child.
DAWU: Yes.
DTU: Yes.
WAWU: Yes.
Ecuador. It should be considered as sickness and treated in the same way either prior to or after childbirth. Accordingly, the woman is entitled to social security assistance.
CONAMU: Yes. The entitlement should also be extended to the father if he has to take on the responsibility of caring for the child.
National Federation of Chambers of Industry of Ecuador: Rather than a maternity benefit, it should be a general health provision which entitles the person concerned to similar financial and medical, as well as leave, benefits.
CEDOC: Yes.
UGTE: Yes. This should be considered additional maternity leave and not sick leave.
Egypt. Additional leave could be considered sick leave, rather than maternity leave.
Egyptian Trade Union Federation: Yes.
Ethiopia. If the sickness occurs out of the prescribed range of maternity leave before or after confinement, the woman should have the right to sick leave with pay upon presentation of a medical certificate.
Finland. The worker may be entitled to special maternity leave if work during pregnancy is not possible due to the working conditions or the nature of the work. Compensation in the form of sick pay is paid for sickness caused by pregnancy or by other disability.
TT, LTK and Federation of Finnish Enterprises: No. Absence from work for medical reasons on the basis of a medical certificate should be considered sick leave and not additional maternity leave.
France. CNPF: Yes. But to be covered through health insurance.
Germany. The additional "leave" in that case is identical with the period of compulsory sickness leave or prohibition of employment for the purpose of maternity protection, and is not an extension of maternity leave as such.
BDA: No. A distinction must be made between normal illness and the complications of pregnancy. The former should not be the subject of provisions in a maternity protection Convention.
Ghana. The period of maternity leave should be extended when necessary, but strictly upon the recommendation of a medical practitioner.
Guyana. Complications during/after delivery should result in additional maternity leave. Complications before delivery should be considered as sick leave.
Hungary. The possibility of additional leave cannot be excluded. In Hungary, such cases are covered by sick leave and sick pay.
India. National Front of Indian Trade Unions: Exceptional cases should be examined critically and, if supported by medical evidence, special leave with pay should be accorded no more than twice in a career.
Indonesia. Only after confinement, and the maximum period.
Islamic Republic of Iran. The presentation of a medical certificate and confirmation by the responsible authority are necessary conditions.
Iraq. General Federation of Trade Unions: Yes.
Italy. In the event of the mother's absence or illness or any other lack of presence, provision should be made for the possibility of compulsory leave from work applying to the father.
Jamaica. Additional leave time should be granted, with or without pay.
Japan. Each Member should be left to decide the system of leave to apply in the case of absence from work for such reasons.
NIKKEIREN: No. The right to an extension of leave in case of illness arising out of confinement, which is stipulated in Article 3(6) of Convention No. 103, is not regulated by Japanese laws and regulations. In our country, provisions for postnatal child-care leave and measures for maternity health care (including leave granted on the basis of a doctor's advice during pregnancy and within one year after childbirth) guarantee a certain period of pre- and postnatal leave. If such "substitute measures" which differ from the provisions of Convention No. 103 in effect exceed the conditions contained therein, they should be considered to fulfil the intentions of the Convention generally, and, therefore, be accepted.
Jordan. Employed women may avail themselves of sick leave.
Amman Chamber of Industry: No. Unless it is an unpaid leave or in cases recommended by a doctor.
Federation of Jordanian Chambers of Commerce: No. Our labour law does not consider providing additional leave due to illness, complications or risk of complications arising out of pregnancy or confinement.
General Federation of Jordanian Trade Unions: Yes.
Republic of Korea. Consideration should be given to special cases, to help to realize maternity protection in a more practical way. However, for countries which are unable to afford basic maternity leave, provisions permitting a grace period for additional leave should be allowed. Each nation should be able to choose the appropriate period of additional leave.
Kuwait. Additional leave, being based on a medical certificate, may be called "sick leave".
Lebanon. Such leave would be considered sick leave and would be subject to relevant sick leave regulations. The duration of such leave should be left to national laws and regulations.
Lithuania. Confederation of Lithuanian Industrialists: No.
Malaysia. Medical leave is provided for pre- and post-confinement in the event of illness/complications.
MEF: No. It should not be considered as additional maternity leave, but as sick leave.
MTUC: Yes. There should be no discrimination.
Mauritius. The typical cases of complications (e.g. illness resulting from pregnancy or confinement or multiple birth) which will entitle the worker to additional leave should be listed in the Convention in order to prevent abuses.
MEF: Yes.
Republic of Moldova. Women should be granted such leave where necessary, and it should be not less than 20 to 50 per cent of the total duration of pregnancy.
Morocco. Particularly in case of perinatal illness that would prevent a woman from resuming her work, and provided that the total period of maternity leave does not exceed 15 weeks.
Mozambique. Only on presentation of a medical certificate and under the conditions established by national legislation.
Namibia. It should be covered under sick leave, not maternity leave.
New Zealand. Requiring a medical certificate may disadvantage some employees, especially where the primary health professional involved is not a doctor.
Norway. Such a provision would be in accordance with national legislation. Where illness arises during pregnancy and, in some circumstances, after childbirth, the woman will be entitled to sick pay.
Peru. Sick leave.
CUT: Yes. A medical certificate is indispensable in order to avoid abuse.
Philippines. Additional leave may be provided, subject to consultation with employers and workers concerned. According to present national practice, maternity leave is solely for the purpose of giving birth. Illness and complications related to pregnancy may be applied to sick leave.
Portugal. Illness or complications resulting from pregnancy, which produce an inability to work, should determine the justification for absence from work. If illness or complications occur during maternity leave, the leave should be interrupted during the period of illness and resumed as soon as possible thereafter.
CIP: No. See Question 5(2).
UGT: No. Such circumstances do not justify the granting of additional leave, but the interruption or suspension of the period counted as maternity leave. Illness of the child or mother should be treated as grounds for such interruption.
Qatar. Such leave is considered as sick leave.
Romania. The woman should benefit from a supplementary medical leave that should not affect the duration of maternity leave. Prolonging her maternity leave with supplementary leaves should not adversely affect her professional career and job security.
San Marino. Must be considered as temporary unfitness.
Saudi Arabia. Periods of illness or complication may be covered through sick leave. There is no need to give an extra leave period.
Slovakia. This should be addressed through relevant national laws.
South Africa. Member States, in consultation with the social partners, should decide whether or not and which parts of this additional leave would be "maternity leave" or "sick leave".
BSA: Such additional leave should, as a matter of course, form part of the normal- sick leave to which the employee is entitled and should therefore not be referred to in an ILO instrument.
Sweden. If these cases are covered in some way, e.g. by health insurance, no new rules need to be introduced.
Switzerland. The prenatal and postnatal periods must be distinguished. In Switzerland, illness or risk of complications before childbirth are considered under sickness benefits. Maternity leave is not extended due to complications or illness following delivery.
UPS: No.
UAPG and Convention of Employers of the Watch Industry (CP): Sickness and pregnancy are being confused here.
VSA: Yes.
Syrian Arab Republic. If illness arises out of pregnancy or confinement, sick leave may be provided on the basis of a duly certified medical certificate.
Togo. A woman whose health requires it should have the right to additional leave.
Trinidad and Tobago. For purposes of clarity, specify "before or/and after".
Tunisia. This leave should be considered sick leave, not an extension of maternity leave.
Turkey. TISK: In the event of long-term treatment or care, a period of unpaid leave could be granted to women after confinement in addition to the six-week period of postnatal leave on presentation of a medical certificate. The length of that additional leave could be left to member States to decide or a minimum period could be laid down in the Convention.
United Kingdom. Outside the maternity leave period, a woman who is ill, including with a pregnancy-related illness, should be able to benefit from the normal sickness leave and pay arrangements provided by the company or the state. A woman should be protected from dismissal during the pregnancy and the maternity leave period if she is absent from work for maternity-related illness.
United States. AFL-CIO: Yes.
Venezuela. This should include complications affecting the baby.
Zimbabwe. But other types of leave, e.g. sick leave or compassionate leave, can be utilized, including the leave entitlement of the father.
ZCTU: Yes. Additional leave should be paid as sick leave following confinement.
The importance of providing additional leave in the case of illness, complications or risk of complications was seen in the strong support for this provision by governments as well as employers' and workers' organizations. This question combines the substance of Article 3, paragraphs (5) and (6), in Convention No. 103 and has been included in Point 8(2) of the Proposed Conclusions.
A number of replies reflected a certain confusion with regard to the words "extension" of leave and "additional leave". Throughout the questionnaire and in the Proposed Conclusions, the Office has used the term "extension" of leave to refer to the lengthening of the maternity leave period provided through national law and practice. The term "additional leave" was used by the Office in view of the fact that Members often provide such leave under national provisions regarding sickness, disability or other necessary absence from the workplace, rather than within maternity leave provisions per se. Thus, the term "additional leave" refers to any extra period of leave provided in the event of illness, complications or risk of complications.
Comments from respondents indicated differences in how the additional leave should be considered. Many governments and a number of employers' organizations specified that an absence of 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 suggested that such leave be treated as additional maternity leave. While retaining a provision for additional leave, the Office did not seek to determine whether or not the additional leave provided should be maternity leave, sick leave or some other form of leave, but felt it better to leave this determination to national law and practice.
A small group of respondents proposed that a maximum period be set for such additional leave, whereas a comparable number noted that additional leave should be provided as required on medical grounds. In light of the differing views expressed, the formulation in Point 8(2) leaves the matter to the competent authority in each member State.
Several governments noted the need for enhanced job security during leave for maternity-related illness, an issue which is addressed in Question 12(1) below.
Maternity benefits
Qu. 8 |
|
While absent from work on maternity leave referred to in question 5 above or on additional leave referred to in question 7 above, should all women who comply with the conditions prescribed in each Member be entitled to receive cash, and medical benefits in accordance with national laws and regulations? |
Total number of replies: 106.
Affirmative: 92. Algeria, Angola, Argentina, Australia, Austria, Barbados, Belarus, Belgium, Benin, Botswana, Brazil, Bulgaria, Cambodia, Cameroon, Canada, Central African Republic, Chad, Chile, China, Colombia, Comoros, Congo, Costa Rica, Croatia, Cuba, Cyprus, Czech Republic, Denmark, Ecuador, Egypt, El Salvador, Estonia, Finland, France, Germany, Ghana, Guyana, Honduras, Hungary, India, Indonesia, Islamic Republic of Iran, Italy, Japan, Jordan, Kenya, Republic of Korea, Kuwait, Latvia, Lithuania, Luxembourg, Mali, Mauritius, Mexico, Republic of Moldova, Mozambique, Netherlands, Nicaragua, Niger, Oman, Pakistan, Peru, Philippines, Poland, Portugal, Qatar, Romania, Russian Federation, San Marino, Saudi Arabia, Seychelles, Slovakia, Slovenia, South Africa, Spain, Sri Lanka, Suriname, Switzerland, Syrian Arab Republic, Tajikistan, Thailand, Trinidad and Tobago, Tunisia, Turkey, Ukraine, United Arab Emirates, United Kingdom, United States, Uruguay, Venezuela, Viet Nam, Zimbabwe.
Negative: 3. Bahrain, Ethiopia, Namibia.
Other: 11. Greece, Jamaica, Lebanon, Malaysia, Morocco, Myanmar, New Zealand, Norway, Papua New Guinea, Sweden, Togo.
Azerbaijan. Azerbaijan Trade Unions Confederation: Yes.
Bahrain. The cash benefits are in fact the wages due to a working woman for the period of compulsory maternity leave. Under national law, there is no scope for the provision of cash or medical benefits as compensation or benefits, except within the limits of the stipulated wage.
Barbados. Women on maternity leave should be entitled to cash benefits through a social security scheme, and medical care provided under the national health care system. In countries where such schemes are inadequate, alternative provisions should be made.
Belgium. From the point of view of equality of treatment, it is essential that pregnancy does not result in an important loss of revenue for the woman. Otherwise, women are placed in an unfavourable or even discriminatory position compared to men.
Botswana. To enable them to sustain themselves during maternity leave.
Canada. Maternity benefits should be accessible to all women who comply with prescribed conditions in accordance with national laws and regulations. In Canada, these are afforded to women on leave through the interaction of the employment insurance benefits, collective agreements supplements, private insurance and group-insurance plans, publicly funded health care and, to some extent, welfare.
CEC: Yes. In order to minimize the economic impact on the pregnant employee.
CLC: Yes. Provisions for maternity protection are meaningless without economic measures which allow women to avail themselves of such measures.
Central African Republic. Such benefits would help stabilize, if not improve, the material and moral situation, during both the prenatal and postnatal periods.
Chile. The instrument would not effectively secure protection of legal entitlements if working women lacked the economic means and necessary medical care to support themselves properly and to maintain their health.
China. Women are entitled to benefits during maternity leave. As for cash payments, consideration should be given to the national conditions, because some countries treat this as sickness benefits. Medical benefits must be paid, no matter what method is used.
Congo. In conformity with the social security code of each country.
Cyprus. Entitlement to benefits, and particularly cash, is essential to give substance to the right to leave.
Denmark. Equal Status Council: Maternity leave is a temporary social event, after which the woman will again be able to provide for herself.
LO: It is a precondition for the leave rights to be exercised to their maximum extent.
Dominica. CSA: Yes. Conditions should be established to ensure the health of mother and child. Cash and benefits will definitely alleviate some problems.
DAWU: Yes.
DTU: Yes.
WAWU: Yes.
Ecuador. The woman must be entitled to receive her full wage during the 12 weeks of leave, as well as medical care. Where the employer has failed to affiliate her, the employer must bear the resulting costs.
CONAMU: Yes. These benefits should apply particularly to women who are heads of households. Women in this position should also be subsidized.
National Federation of Chambers of Industry of Ecuador: Yes, but the treatment of complications prior to or following the period of maternity leave should be governed by general health provisions rather than as a maternity benefit.
UGTE: Yes. Maternity leave will be effective if the woman is guaranteed medical and financial benefits.
Egypt. It should be considered as pay rather than benefits, because maternity leave must be a paid leave and the wages of the mother cannot be deducted from this leave.
Federation of Egyptian Industries: Yes, provided that these benefits are considered as such, rather than as a wage.
Ethiopia. The provision of cash and medical benefits with regard to maternity requires a strong economic status, and is only applicable in developed and economically stable countries. Such benefits are open for collective bargaining negotiations.
CETU: Yes.
Finland. The maternity allowance should compensate a person's loss of earnings in reasonable proportion to earlier income. On medical benefits, see Question 18, and on cash and medical benefits, Question 19(c). Individual countries should determine the amount of benefits in accordance with national laws and regulations.
France. Cash benefits in the form of a daily indemnity are provided to employed women who meet the required minimum level of activity. Benefits are intended to encourage women to stop working for a determined period in order to protect their health and that of the child. Employed women who do not fulfil the minimum requirements nonetheless receive medical benefits.
CFTC: Yes. Necessary to allow employed women to stop work without loss of salary.
CGT-FO: Yes. One hundred per cent coverage.
Ghana. This is to ensure that all financial obligations arising out of pregnancy and after delivery are fully met and the welfare of women protected.
GEA: No. Only medical benefits are provided in addition to salary.
Greece. All working women should have the right to cash and medical benefits while on maternity leave.
India. AITUC: Yes. For a country like India, benefits are absolutely necessary bearing in mind the health of mother and child.
Bharatiya Mazdoor Sangh: Yes. For leave in excess of maternity leave, an amount equivalent to 25 per cent of earnings before confinement should be given.
Indonesia. APINDO: No. Possible medical benefits (according to agreement), but not cash.
Iraq. General Federation of Trade Unions: Yes.
Jamaica. While there is a need for some kind of cash or medical benefits for potential mothers, benefits should be dependent on the socio-economic condition of the woman.
JEF: Exceptions should be permitted.
Japan. Regarding medical benefits, it should be permitted to provide cash to help a woman with medical expenses, separate from the cash benefits for maintenance of living.
Republic of Korea. Cash and medical benefits should be provided, depending on national circumstances. It may be desirable for developing countries to provide additional leave without pay or with lower benefits and to enhance the level of benefits gradually.
Lebanon. Each member State should determine the amount of cash and medical benefits to be provided in accordance with national laws and regulations, having due regard to the fact that maternity leave may be less than 12 weeks.
Malaysia. Any payments in respect of additional leave should be left to negotiation between parties.
MAPA: Yes.
MEF: No. Not all maternity leave entails cash payment. Confinement beyond the eligibility limit is without pay.
MTUC: Yes. The above needs to be regulated throughout.
Republic of Moldova. The State should monitor the development of the country's gene pool and stimulate that development where necessary.
Morocco. All women who comply with the conditions should be entitled to cash benefits. Medical and family benefits should be provided on the basis of a medical file and within the limits prescribed by national legislation.
FCCIS: Yes.
CDT: Yes.
Myanmar. Female government employees to whom social security legislation is applicable are entitled to maternity benefits, apart from maternity leave of 12 weeks with full pay.
Namibia. Medical benefits should be covered under medical aid schemes, not maternity schemes.
NEF: Yes.
NUNW: Yes. As long as States can adhere to the national laws and regulations.
Netherlands. FNV: The wording of Article 4(1) of Convention No. 103 is preferable to the wording of this question. The entitlement to medical benefits during the pregnancy, i.e. before the maternity leave, is of crucial importance to the health of the woman and her unborn child.
New Zealand. In general terms, the New Zealand Government agrees. There should be no specific requirements in any instruments as to what benefits should be provided. The provision of cash benefits which exceed those provided through a taxation-based means tested system of income support should be a matter for private negotiation between employees and employers. The provision of insurance-type cash benefits to replace income during periods of maternity leave should be the responsibility of individuals.
NZCTU: Yes. Leaving the detail of benefits provided to national laws and regulations would defeat a fundamental purpose of the Convention, which is to provide income security for women while on parental leave. Many women simply do not have sufficient bargaining power to negotiate paid leave and most contracts do not make provisions for it. Currently, 83 per cent of private sector contracts and 61 per cent of all contracts in New Zealand have no payment provisions and, where payments do exist, they are often only for a short period.
Norway. The thrust of this question is that, under the Convention, the right to medical benefits will depend on national legislation containing such provisions. This will be unproblematic in relation to Norwegian law.
Papua New Guinea. Superannuation/medicare benefits are available to women workers who are members of such schemes.
Peru. CUT: If the wording "in accordance with national laws and regulations" is retained, then at least the minimum level of benefits prescribed in the Convention should be guaranteed.
Portugal. Granting maternity benefits in accordance with national legislation may facilitate the ratification of the Convention.
UGT: This could be a step backward from the current Convention. The question as formulated seems to allow the State discretion concerning not only the conditions for granting benefit, but the persons to whom the law applies, leaving it to each national legislation to grant the right to women who meet the conditions laid down. The entitlement to a right cannot be annulled by conditions restricting its full effect or enjoyment. Thus, during the absence from work, the woman has the right to cash and medical benefits. National legislation shall, as a consequence, fix the conditions for granting them.
Qatar. Benefits are to be defined by national legislation and regulations. The instrument should provide for a paid maternity leave, but additional leave should be submitted to national legislation.
Slovakia. This should be addressed by the relevant national laws.
South Africa. BSA: A right to maternity cash benefits while on normal maternity leave is an accepted principle in terms of unemployment insurance in South Africa. It might, however, prove difficult in some countries. ILO instruments should take cognizance of the realities in poorer countries. Normal sick leave provisions should apply regarding cash during an additional leave period. An entitlement to medical benefits in the case of pregnancy (whether the woman is employed or not) is generally accepted in South Africa, but its feasibility has to be questioned in countries where medical facilities are not prevalent.
Sweden. The Convention should contain rules on both medical and cash benefits.
Switzerland. UPS: Our members support the practice of cash benefits. Mixing cash benefits with the question of medical benefits creates confusion.
Syrian Arab Republic. If current laws and legislation do so provide.
Togo. If she fulfils the required conditions.
United Kingdom. Maternity benefits should be available through statutory provisions subject to reasonable qualifying conditions and limits on entitlement.
United States. Only in accordance with national laws and regulations.
USCIB: No. Whether the leave is paid or not should be resolved between the employer and woman in terms of the overall benefits package made available to all employees by the employer. Some women may value a maternity leave benefit, while others may prefer to elect other benefits or even higher pay. Mandated benefits, while appearing to be free to policy-makers, are not in reality free to employees. Research in the United States has shown that employees indirectly pay for up to 80 per cent of the cost of the mandated benefit by receiving lower wages. Mandated benefits can impede overall job creation.
AFL-CIO: Members should take all appropriate steps to ensure that women are fully informed of any qualifying conditions for receipt of cash and medical benefits, and that these conditions are not burdensome. When reasonable grounds exist for a woman's failure to comply with such conditions, benefits should still be granted.
The vast majority of replies from governments, as well as from employers' and workers' organizations, supported the inclusion of this provision within the Convention. Cash and medical benefits were seen as essential to ensuring the economic security and health protection for a woman and her child while she is on maternity leave. However, a few respondents did not consider that detailed provisions regarding cash and medical benefits were appropriate within a Convention, some being of the view that these issues should be resolved through collective bargaining. Several replies emphasized that certain countries faced particular difficulties, given the fact that their ability to grant such benefits was often conditional upon the country's level of economic development. This issue is dealt with more fully within the commentary to Question 9(3) below.
A few replies preferred the wording in Article 4(1) of Convention No. 103 to that suggested in Question 8. Several replies described their own legislation on maternity protection to emphasize their view that such benefits should be provided in accordance with national laws and regulations. Based upon the comments received, the Office has reworded this proposal which sets out the general principle as in Article 4 (1) of Convention No. 103 of the entitlement to cash and medical bene-- fits during maternity leave or any period of additional leave. However, it leaves to each Member to determine in accordance with national laws and regulations or- other means, the conditions for such entitlement. This proposal is found in Point 9(1) of the Proposed Conclusions.
Cash benefits
Qu. 9(1) |
|
In the case of an affirmative response to Question 8 above,
should cash benefits be at a level which ensures the full and healthy
maintenance of the woman and her child in accordance with a suitable
standard of living, by providing for either: |
Paragraph 1:
Total number of replies: 93.
Affirmative: 77. Algeria, Angola, Australia, Austria, Bahrain, Barbados, Belgium, Benin, Botswana, Bulgaria, Cambodia, Cameroon, Chad, Chile, China, Colombia, Comoros, Congo, Croatia, Cuba, Cyprus, Estonia, Finland, France, Ghana, Guyana, Honduras, India, Indonesia, Islamic Republic of Iran, Italy, Jordan, Kenya, Republic of Korea, Kuwait, Latvia, Lithuania, Luxembourg, Malaysia, Mali, Mauritius, Republic of Moldova, Namibia, Netherlands, Nicaragua, Niger, Oman, Pakistan, Papua New Guinea, Peru, Philippines, Portugal, Romania, Russian Federation, San Marino, Saudi Arabia, Slovakia, Slovenia, South Africa, Spain, Sri Lanka, Suriname, Sweden, Switzerland, Syrian Arab Republic, Tajikistan, Thailand, Trinidad and Tobago, Tunisia, Turkey, Ukraine, United Arab Emirates, United Kingdom, Uruguay, Venezuela, Viet Nam, Zimbabwe.
Negative: 2. Ecuador, United States.
Other: 14. Canada, Denmark, Egypt, El Salvador, Ethiopia, Jamaica, Japan, Lebanon, Morocco, Mozambique, New Zealand, Qatar, Seychelles, Togo.
Subparagraphs (a) and (b) :
Total number of replies: 88.
Affirmative: 45. Algeria, Angola, Austria, Barbados, Belarus, Botswana, Cambodia, Central African Republic, China, Colombia, Congo, Croatia, Cuba, Estonia, Finland, Germany, Guyana, India, Islamic Republic of Iran, Jamaica, Jordan, Kenya, Republic of Korea, Latvia, Lithuania, Mali, Mauritius, Morocco, Netherlands, Oman, Philippines, Portugal, San Marino, Slovenia, South Africa, Sweden, Switzerland, Thailand, Togo, Trinidad and Tobago, Turkey, Ukraine, United Arab Emirates, United Kingdom, Venezuela.
Negative: 14. Argentina, Australia, Bahrain, Belgium, Brazil, Ghana, Malaysia, Mozambique, Namibia, New Zealand, Papua New Guinea, Sri Lanka, Syrian Arab Republic, United States.
Other: 29. Bulgaria, Cameroon, Chad, Chile, Costa Rica, Cyprus, Czech Republic, Ecuador, Greece, Honduras, Hungary, Indonesia, Italy, Japan, Kuwait, Lebanon, Mexico, Norway, Pakistan, Peru, Poland, Romania, Russian Federation, Saudi Arabia, Slovakia, Spain, Tunisia, Viet Nam, Zimbabwe.
Argentina. (a), (b) Benefits should equal the normal average wages.
CGT: Yes.
UIA: (a)-(b) Yes to (a), no to (b).
Australia. The cash benefit should aim at ensuring a suitable standard of living is maintained. Methods of paying cash benefits and the rate of payments should be addressed in the Recommendation only. See Questions 17 and 19. The focus on rates of pay appears to pre-suppose that the benefit will be payable from social insurance. The standard should allow countries which make payments from publicly funded social security systems (non-contributory arrangements) to impose conditions such as means-testing. Furthermore, the new standard should not conflict with the Social Security (Minimum Standards) Convention, 1952 (No. 102), or the Medical Care and Sickness Benefits Convention, 1969 (No. 130), regarding payment of maternity benefits.
ACTU: (a)-(b) Benefits in accordance with (a) or (b) constitute a safety net. The goal should be benefits equal to the woman's previous earnings.
Austria. (a)-(b) Option (a) is preferable. At most, a choice could be permitted between (a) and (b).
BAK: (a)-(b) No Benefits should be based on previous earnings.
Azerbaijan. Azerbaijan Trade Unions Confederation: (a)-(b) Yes to (b).
Bahrain. (a)-(b) The woman's earnings (i.e. the agreed-to wage) should be replaced for the period of maternity leave, at least for the compulsory period.
Barbados. Benefits are paid according to the applicant's contribution record which depends on the level of earnings. (a)-(b) Where a woman fails to qualify under the national social security scheme, provision should be made to pay a flat rate based on the father's contribution to the scheme.
Belarus. (a)-(b) The affirmative answer applies to cases where flat-rate benefits exceed benefits based on previous earnings.
Belgium. See Question 8. (a)-(b) No options should be offered. Adequate benefits must ensure an income at least equivalent to what the woman would receive in the event of an interruption of work due to health reasons. Such a criterion, rather than the notion of two-thirds of earnings, should be written into the Convention.
Botswana. (a)-(b) Should be left to collective bargaining.
Brazil. (a)-(b) Should be determined by each member State in accordance with its economic situation.
CNC and CNI: No. (a)-(b) The level of cash benefits should be determined on the basis of the employee's remuneration.
CNF: Yes. (a)-(b) The woman should receive the same amount as if she were working.
Bulgaria. (a)-(b) Yes to (b).
Cambodia. (a)-(b) That depends on the social security system in each member State.
Cameroon. (a)-(b) Yes to (b). The amount should be based on national laws and regulations.
Canada. The salary-replacement provisions should propose neither full compensation nor a flat rate. Such approaches would make it impossible for Canada to ratify the Convention. Requiring a reasonable or appropriate amount to ensure the health and welfare of the woman and child "in accordance with national law and practice" would probably be workable. The replacement ratio could be a combination of national social security payments and employer paid supplementary benefits.
CEC: (a)-(b) The amount taken into account for the purpose of computing benefits. The approach should not be rigid. The financial capacity of countries should be considered.
CLC: Yes. There should be no loss of earnings or benefits for women on leave. (a)-(b) Yes.
Central African Republic. (a)-(b) On condition that the flat rate foreseen in (b) is comparable to the level foreseen in (a).
Chad. (a)-(b) Possibly.
Chile. (a)-(b) Yes to (a). The words "or of the amount taken into account for the purpose of computing benefits" should be removed to avoid subjectivity.
CPC: Cash benefits should be in line with her previous income.
China. The "suitable standard of living" and the amount of benefits should be determined by each country according to national conditions.
Colombia. The benefit should be at least equal to the income that the woman worker would receive during the period of leave.
CGTD: Yes. The Convention should establish that workers' earnings should be reviewed, at least annually, in light of monetary fluctuations.
Comoros. If the economic situation of the country permits.
Costa Rica. (a)-(b) Cash benefits should not be less than the woman's previous earnings.
Croatia. (a)-(b) Both alternatives should be kept. The sources of financing should be determined in advance, as provided for in Article 4 of Convention No. 103.
KNSH, SSSH, HUS, MATICA and KHSJSN: (a)-(b) Yes to (a) only, without an alternative.
Cuba. (a)-(b) Yes to (a).
Cyprus. (a)-(b) We prefer (a), which links replacement income to previous earnings. For option (b) to meet the objective stated in 9(1), it must be stipulated that the flat-rate benefit be fixed at such level as to secure at least two-thirds of the earnings of the typical female worker.
Pan-Cyprian Federation of Labour (PEO): (a)-(b) Yes.
Czech Republic. (a)-(b) Yes to (a).
UZS R: (a)-(b) Cash benefits should be set at a minimum of 60 per cent of the annual average, with the possibility of increase. The lower limit should provide the minimum required for two or more persons, depending on the number of children born. This rate should be implemented in the case of social funds even for unemployed (uninsured) women.
Denmark. Cash benefits must be laid down in accordance with national laws and regulations.
Equal Status Council: The woman's income should not be reduced.
LO: A flat-rate benefit is preferable because it protects women who have had reduced earnings for a period leading up to the birth.
Dominica. CSA: Yes. Many households are single-parent households. Cash benefits are needed to ensure the mother's and child's health. (a)-(b) No.
DAWU: (a)-(b) Yes to (a).
DTU: Yes. (a)-(b) Yes.
WAWU: Yes. (a)-(b) Yes.
Ecuador. A percentage of the worker's wage should be deducted to avoid periodic revisions. If there is a wage increase, the benefit will rise accordingly. (a)-(b) Or offer other options.
National Federation of Chambers of Industry of Ecuador: Cash benefits should be linked to previous earnings, not to the maintenance needs of either mother or child. (a)-(b) Yes to (a).
CEDOC: (a)-(b) Yes to (b).
UGTE: Yes. (a)-(b) Yes to (b). This benefit should be considered in relation to the real payments to be made, not only in relation to her remuneration.
Egypt. Cash and medical benefits must be provided according to social security provisions in each State.
Federation of Egyptian Industries: Yes. Wages should be paid in accordance with national legislation.
Egyptian Trade Union Federation: Yes.
El Salvador. These benefits should be fixed.
Ethiopia. See Question 8.
CETU: Yes. (a)-(b) Yes, with the consent of the woman.
Finland. See Question 8. (a)-(b) Choice (a) should be a priority and choice (b) guaranteed for women with no previous income.
France. CNPF: (a)-(b) No. To be set by member States.
CFDT: (a)-(b) Yes to (b).
CFE-CGC: (a)-(b) Yes.
CFTC: (a)-(b) Yes. The woman may choose the most favourable solution for herself.
CGT-FO: (a)-(b) Yes, (a) is preferable. Flat-rate benefits are uncertain unless they are periodically adjusted.
Germany. BDA: (a)-(b) Yes, but the benefit levels and the basis on which they are calculated should be left to member States to decide.
German Confederation of Trade Unions (DGB): Yes.
German Union of Salaried Employees (DAG): (a)-(b) Yes. Benefits should be based on the woman's average earnings in the three months before the birth.
Ghana. Cash benefits should be fixed in accordance with the national situation. (a)-(b) There must be consultation between social partners to determine both options.
NCWD: (a)-(b) Yes.
GEA: (a)-(b) Yes.
TUC: (a)-(b) Option (a) is preferred, since (b) may leave room for arbitrariness.
Greece. (a)-(b) Yes to (a).
Honduras. The leave must be remunerated by the wages due from the employer and the national social security system. (a)-(b) Yes to (b).
COHEP: (a)-(b) No. Any choice of this type would imply labour costs and would be unfair to the employer.
Hungary. (a)-(b) Yes to (a). The concept of "appropriate" must be specified.
India. (a)-(b) As per national laws.
Bharatiya Mazdoor Sangh: (a)-(b) Prefer (b).
HMS: The minimum wage should provide for basic needs. If not, then an additional allowance during the pre- and postnatal periods must be given to ensure the health of mother and child. The State must take responsibility for home-based workers. (a)-(b) Flat rates should not be encouraged.
National Front of Indian Trade Unions: (a)-(b) Cash benefits should be equal to the woman's previous earnings. Adjustments should not be detrimental to women. Corresponding employment benefits should continue.
Indonesia. (a)-(b) Option (a), in accordance with Convention No. 103.
Italy. (a)-(b) Yes to (a) ; no to (b).
Jamaica. The level of benefits should be dependent on the socio-economic condition.
JEF: The level of cash benefits should be dependent on affordability or contribution to a fund.
Japan. The level of such benefits will differ from country to country. Each Member should be allowed to stipulate this level through its own national laws and regulations in accordance with that country's actual situation. (a)-(b) The Convention should not stipulate a specific numerical value as in (a). The system envisaged under (b) and how it differs from (a) are hard to understand.
NIKKEIREN: (a)-(b) No to (a). Option (b) is acceptable, on condition that it complies with national laws and regulations. A more flexible provision is necessary here, such as "according to the national circumstances and within the scope of the provisions of the national laws and regulations".
JTUC-RENGO: (a)-(b) Yes to (a) ; (b) is unclear.
Jordan. This may be dependent on insurance which covers such benefits.
Amman Chamber of Industry: (a)-(b) No.
Federation of Jordanian Chambers of Commerce: No.
Republic of Korea. (a)-(b) Each member State should be able to choose, within certain limits, the most appropriate level and method of computing cash benefits.
Kuwait. Cash benefits should ensure the provision of all health and medical care necessary for the woman and her child. (a)-(b) Yes to (a). Option (b) allows different opinions about the appropriate amount.
Lebanon. In principle, yes. However, full and healthy maintenance may not be fully realizable at the same level in all countries. (a)-(b) Option (a) seems reasonable. Such benefits should be determined by national laws and regulations.
Lithuania. Confederation of Lithuanian Industrialists: No. Must obtain sickness benefit.
Lithuanian Workers' Union: (a)-(b) Yes, provided that the two-thirds rate is not less than the flat rate.
Malaysia. (a)-(b) Cash benefits should be commensurate with normal wages.
MAPA: No. Conditions such as a "suitable standard of living" are too subjective. (a)-(b) Yes.
MTUC: (a)-(b) No. Employers are compelled to pay full benefits
Mali. (a)-(b) The level of benefits should be related to the woman's salary.
Mauritius. (a)-(b) The woman should be guaranteed at least her minimum basic wages on the condition that she has worked for a specified period of time for the same employer.
MEF: No. Cash benefits should be given as an allowance.
Mexico. The wording is ambiguous and concepts should be defined. (a)-(b) The determining of cash benefits should be left to national legislation.
Morocco. Cash benefits should be at a level which ensures the full and healthy maintenance of the woman and her child.
FCCIS: Yes. (a)-(b) Yes.
CDT: Yes. (a)-(b) The amount should be determined.
Mozambique. According to national conditions. (a)-(b) That is the minimum benefit needed to obtain medical assistance and enjoy a decent standard of living.
OTM: Yes. Maintain all benefits, without any reduction, and establish other benefits which guarantee the health and standard of living of mother and child. (a)-(b) Yes. Option (b) is more flexible and practical.
Namibia. Cash only, no medical benefits. (a)-(b) A combination of (a) and (b) is required.
NEF: Yes. If contributions have been made for a specified period of time prior to confinement. (a)-(b) Yes.
NUNW: (a)-(b) Yes.
Netherlands. FNV: (a)-(b) Prefers (a), as in Convention No. 103.
New Zealand. See Question 8. The level, and targeting, of cash benefits should be determined by each member State. Where individuals can provide for themselves and do not require cash benefits, there should be no requirement that they receive them. (a)-(b) The provision, rates of, and qualifying conditions for any cash benefits should be decided by each member State. Specific provisions such as these will be a barrier to ratification by many member States. Unintended labour market effects could include disincentives to employ females and an overall decrease in employment due to possibly increased labour costs.
NZEF: (a)-(b) Any further arrangement beyond basic financial protection for women who need it should be a matter of agreement between the employer and the employee(s).
NZCTU: Yes. (a)-(b) Yes.
Norway. (a)-(b) Yes to (a).
Pakistan. The cash benefits must be commensurate to the requirements of mother and child. (a)-(b) Yes to (a).
Peru. (a)-(b) Yes to (a).
CUT: (a)-(b) Yes to (a). As long as the two-thirds applies to the previous earnings, rather than to the amount taken into account for the calculation of benefits.
Poland. (a)-(b) In Poland, 100 per cent of a woman worker's pay is the basis for calculation of benefits.
KPP: (a)-(b) Yes.
OPZZ: (a)-(b) Yes to (b).
Portugal. CIP: The Convention should not set minimum rights or quantify benefits. That should be left to member States.
CGTP: Yes. (a)-(b) No.
UGT: (a)-(b) No. Recommendation No. 95 already provides a rate of 100 per cent of the woman's previous earnings taken into account for the purposes of calculating benefits. This should be specified in the Convention.
Romania. The increasing number of single-parent families, in which the mother is the sole provider, must also be considered. (a)-(b) Yes to (a). A flat-rate benefit of an "appropriate" amount may give rise to interpretations less favourable to mothers, by linking the level of benefits with the financial capabilities of employers.
National Council of Private Small and Medium-sized Enterprises: Yes. Otherwise the mother would be forced to find another form of financial support. (a)-(b) Yes. The choice should be matched to the material situation and the health of mother and child.
CSDR: (a)-(b) Yes.
Russian Federation. If economic circumstances allow. (a)-(b) Current legislation provides that the amount of benefit depends on the minimum wage. Cash benefits cannot be fixed at a flat rate.
Saudi Arabia. (a)-(b) These options are unnecessary if the amount of the benefit is defined in national legislation.
Seychelles. Women on maternity leave enjoy full pay.
Slovakia. (a)-(b) Preference for (a).
South Africa. BSA: (a)-(b) The suggested two-thirds of earnings is too high. A flat rate might be an option in countries where no other provision applies, provided it is affordable.
Spain. (a)-(b) No to (b). Option (a) should be reworded in keeping with Article 4(6) of Convention No. 103, raising the currently established minimum to two-thirds of the woman's previous earnings.
CIG: (a)-(b) A benefit equivalent to 100 per cent of her usual salary.
Trade Union Confederation of Workers' Committees (CCOO): (a)-(b) Yes.
Sri Lanka. (a)-(b) In developing countries, such payments are insufficient for the satisfactory maintenance of the family.
Suriname. ASFA: (a)-(b) No to (a) ; yes to (b).
Sweden. (a)-(b) Cash benefits should be income-related as in option (a).
Switzerland. UAPG: The expression "full" maintenance is vague.
UPS: (a)-(b) Option (a) would be acceptable in a Recommendation.
Syrian Arab Republic. The woman should receive the equivalent of a full wage during maternity leave.
Togo. Cash benefits should be at a level to ensure the proper maintenance of mother and child. (a)-(b) If a flat rate benefit is necessary, it should follow the rule stated in (a).
Trinidad and Tobago. NATUC: (a)-(b) Women must be afforded the choice of the most beneficial benefits in this regard.
Tunisia. (a)-(b) Prefer (a).
Turkey. (a)-(b) A more flexible provision regarding the minimum replacement rate may be more appropriate.
TISK: International differences in economic levels will determine the level of cash benefits. (a)-(b) The cash benefit should be evaluated within the scope of compulsory social insurance and the amount to be provided should be determined at the national level.
TÜRK-IÔ: (a)-(b) No. Cash benefits should equal the employee's previous earnings.
United Kingdom. Yes, in accordance with standards of living in each member State. (a)-(b) Yes. The provision should permit a choice between, or a combination of, (a) and (b). The proportion of earnings replacement in (a) should be determined by each member State, subject to that rate not being less than the flat rate in (b).
United States. The provision of cash benefits should be in accordance with national law and practice.
USCIB: (a)-(b) No. Disability benefits should not distinguish between and among disabilities.
AFL-CIO: Yes. (a)-(b) Yes. Cash benefits should be provided at the greater of the two rates proposed. Members' tax laws should treat the benefits as is necessary to ensure their maximum value to the mother and child.
Uruguay. National Chamber of Commerce and Chamber of Manufacturers: (a)-(b) No. In accordance with national law and circumstances of each country.
Venezuela. Financial support should be sufficient for one or more children.
Viet Nam. (a)-(b) Option (b) seems fair and practical. Such benefits should not be less than minimum wages.
Zimbabwe. This should also be applicable to fathers. (a)-(b) The woman
should be on full pay.
Qu. 9(2) |
|
Should a Member which ratifies the Convention examine periodically, in consultation with the most representative organizations of employers and workers, the possibility of increasing the amount or the rate of benefits referred to above? |
Total number of replies: 99.
Affirmative: 80. Algeria, Angola, Austria, Barbados, Belarus, Belgium, Benin, Botswana, Bulgaria, Cambodia, Cameroon, Central African Republic, Chad, Chile, China, Colombia, Comoros, Congo, Cuba, Cyprus, Czech Republic, El Salvador, Estonia, Finland, France, Germany, Ghana, Greece, Guyana, Honduras, India, Indonesia, Islamic Republic of Iran, Italy, Jamaica, Japan, Jordan, Kenya, Republic of Korea, Kuwait, Latvia, Lithuania, Luxembourg, Malaysia, Mali, Mauritius, Mexico, Republic of Moldova, Morocco, Mozambique, Namibia, Netherlands, Nicaragua, Niger, Norway, Oman, Pakistan, Peru, Philippines, Portugal, Qatar, Romania, San Marino, Slovakia, Slovenia, South Africa, Spain, Sri Lanka, Suriname, Thailand, Togo, Trinidad and Tobago, Turkey, Ukraine, United Arab Emirates, United Kingdom, United States, Venezuela, Viet Nam, Zimbabwe.
Negative: 9. Argentina, Australia, Bahrain, Brazil, Ecuador, Papua New Guinea, Switzerland, Syrian Arab Republic, Tunisia.
Other: 10. Canada, Costa Rica, Croatia, Denmark, Egypt, Hungary, Lebanon, New Zealand, Russian Federation, Saudi Arabia.
Argentina. CGT: Yes. Benefits should be increased to the extent possible for each type of occupation.
UIA: No. The level of benefits paid should be fixed.
Australia. Periodic reviews should be conducted to reflect the adequacy of the rate to provide both an affordable and a fair level of assistance for families at the time of birth. Indexation of the rate might also be recommended to ensure that adequacy is consistently maintained and any benchmarks preserved. Such a provision should be included in the Recommendation, or supplement 9(1) above.
ACTU: Yes.
Austria. With benefits at a level of two-thirds or even 100 per cent of previous earnings, it is pointless to impose a regular examination.
ÖGB: Yes. The Convention should only allow review of benefits in the sense of an increase.
Azerbaijan. Azerbaijan Trade Unions Confederation: Yes.
Bahrain. Not if the principle of a woman's entitlement to a wage for the period of maternity leave is accepted. This is taken to represent a cash benefit, and as such requires no increase in the amount or the rate of benefits.
Barbados. 100 per cent of insurable earnings is already provided.
Brazil. CNC and CNI: No. Any increase should be determined by way of collective bargaining.
CNF: Yes.
Canada. Consultation mechanisms are likely already in place for the adjustment of government-run programmes providing benefits in such circumstances. However, there may not be comparable consultations with respect to privately run plans. Many plans, even in unionized environments, are not subject to such scrutiny.
CEC: No. It is a governmental responsibility.
CLC: Yes.
Central African Republic. This should be done within a reasonable timeframe.
Chile. This benefit should tend towards 100 per cent of remuneration. It is also necessary to take increases in women's earnings and income increases across the workforce into account, independently of whether the 100 per cent level is achieved or not.
CPC: No. Standards cannot be under constant revision, it would be detrimental for labour relations.
Colombia. Countries that do not yet recognize that the benefit should be equivalent to the salary should commit themselves to revising their legislation to bring it into line with the minimum established in the Convention.
Comoros. In line with the economic situation.
Congo. In accordance with legislation in each country.
Costa Rica. The amount should be examined periodically, in consultation with the sectors, in those cases where the amount is below the woman's earnings before taking the maternity leave.
Croatia. Consultations should be held depending on the source of financing. If the benefits are financed from the budget, consultations with employers and unions are not necessary.
Croatian Association of Employers: Yes.
KNSH, SSSH, HUS, MATICA and KHSJSN: Yes.
Czech Republic. The increase will depend on the method of construction and the financing of such a benefit. The question should also be discussed when financial imbalance occurs between incomes and expenditure on cash benefits or when circumstances call for the adjustment of the level of benefits.
Denmark. It would be administratively difficult to examine periodically whether the maternity benefit should be increased in connection with reports on the Convention.
Equal Status Council: Yes.
FTF: Yes.
LO: Yes.
Dominica. CSA: Yes.
DTU: Yes.
WAWU: Yes.
Ecuador. If a percentage is established, periodic consultation is not necessary. The possibility of one party refusing will be avoided.
CONAMU: Yes. The ILO should determine the mechanisms for these consultations, and they should be outlined in the Convention.
National Federation of Chambers of Industry of Ecuador: Periodic examinations may be inappropriate, unless they occur only when the cash benefit is considerably lower than the woman worker's usual level of income.
UGTE: Yes. It should be revised on the basis of the country's economic situation.
Egypt. If a Member pays a rate of wages, it could examine periodically, in consultation with the most representative organizations of employers and workers, the possibility of increasing this rate.
Federation of Egyptian Industries: Yes. If the State does not pay a certain rate of these benefits to the woman, the possibility of increasing this rate should be examined in consultation with the employers' organizations.
Egyptian Trade Union Federation: Yes.
Ethiopia. CETU: Yes. There may arise a need for some better arrangement.
Finland. See Question 17.
France. CFTC: Yes. To adapt benefits in line with changes in the cost of living.
Germany. BDA: No. There is no justification for a regular examination, given that decisive social and economic developments do not follow a regular course.
Ghana. Upward adjustment is necessary in view of inflation.
TUC: Yes, (a) does not require a review, but (b) will require a review as a matter of course.
Guyana. Actuarial assessment is also necessary when considering increases in rates.
Honduras. COHEP: Yes. If done by collective negotiation.
Hungary. Under national legislation regarding social insurance, representatives of employers and workers and those entitled to insurance benefits are entitled to make proposals, initiate action and report on issues of relevance for the development of social insurance provisions.
India. Bharatiya Mazdoor Sangh: Yes. Keeping in view inflation and rising costs.
National Front of Indian Trade Unions: Yes. As a proactive process in light of the changing social system and economy.
Islamic Republic of Iran. Benefits will increase along with annual wage increments.
Iraq. GFTU: Yes.
Italy. CONFINDUSTRIA: Should be handled through collective bargaining or national legislation.
Japan. To ensure flexibility, "periodically" should be replaced by "as necessary".
NIKKEIREN: No, unless the word "periodically" is replaced by the phrase "as occasion demands".
Republic of Korea. To update the existing level of cash benefits in accordance with the changes in economic conditions and the standards of living.
Kuwait. Because the conditions on the basis of which the amount or rate of benefits is determined may change.
Lebanon. This should be left to the individual member States to determine in the light of their economic and living conditions.
Lithuania. Confederation of Lithuanian Industrialists: No.
Malaysia. When it is deemed appropriate and necessary.
Mauritius. MEF: Yes. Through negotiation and collective bargaining.
Mexico. It is appropriate for member States, particularly developing countries, to study the possibility of increasing the amount or the rate of their maternity benefits, taking into account their financial circumstances.
Republic of Moldova. This is essential in light of considerable changes and growth in inflation.
Morocco. In accordance with the requirements of decent living.
Mozambique. Provided that the conditions of the Members so permit.
OTM: The social partners should examine on a periodic basis the possibility of increasing the amount of benefits to nursing mothers.
Namibia. NEF: Yes. Taking into account inflation.
New Zealand. Member States' governments should be allowed to set cash benefits in accordance with their national laws and practice.
NZCTU: Members should review the rates to ensure they are relevant to the standard of living.
Nicaragua. In accordance with the country's financial possibilities.
Niger. To respond to the changing socio-economic context.
Oman. To compensate for the increase in the price of basic commodities and the changing economic circumstances.
Pakistan. An agreement or amendment in the national law on the basis of such consultation would be desirable.
Peru. Only if the Member grants a cash benefit less than the average of the amount regularly received by the woman.
CUT: Annually.
Poland. KPP: Yes.
OPZZ: Yes.
Portugal. CIP: To be left to member States to determine.
UGT: Yes. Where it is not possible to provide 100 per cent earnings replacement, the Convention should contain an obligation to re-examine the possibility of increasing cash benefits.
Qatar. If alternatives (a) and (b) are adopted.
Romania. This proposal could be included within collective agreements, concluded within a tripartite framework.
National Council of Private Small and Medium-sized Enterprises: Yes. Periodic examination and modification are necessary to improve the quality and value of benefits in order to achieve the most effective social protection possible.
Russian Federation. Under national legislation, the benefit is increased in proportion to increases in the minimum wage.
Saudi Arabia. Depending on national legislation.
South Africa. BSA: No. BSA does not support the contention that the rate should be increased over time.
Sri Lanka. On the basis of the economic situation of the country.
Suriname. ASFA: Positive developments should be taken into account to increase the amount or rate of benefits.
Switzerland. No, for the same reasons invoked under Question 5(2).
UPS: No. This encouragement of further increases is a step in the wrong direction.
UAPG: Rather than "increasing", the term should be "modifying".
VSA: Yes.
Tunisia. This could constitute an obstacle to ratification. The social security bodies in the majority of developing countries already have difficulties in guaranteeing a rate of two-thirds of earnings. The Convention should be limited to the minimum. Ratifying States could always provide better measures in their national legislation.
Turkey. TISK: Yes. The conditions governing working life should be determined within a tripartite framework as far as possible and the employer and worker organizations should have a say on measures concerning them. Statutory regulations which emerge as the result of the collaboration of government, employers and workers contain, at least theoretically, the provisions most suited to the conditions prevailing in a given country. It is essential that the economy of the country and the financial balance of the social security institutions be borne in mind.
United Kingdom. Yes, if national legislation does not provide for a review of rates on a regular basis.
United States. USCIB: No.
AFL-CIO: Yes.
Uruguay. National Chamber of Commerce and Chamber of Manufacturers: Yes.
Viet Nam. The rate of benefits should be reviewed periodically
to suit the country's development and to provide more favourable conditions
for women.
Qu. 9(3) |
|
Irrespective of the answer given in paragraph 1 above, should a Member whose economy and social security system are insufficiently developed be deemed to be in compliance with the Convention if cash maternity benefits are provided at a rate no lower than the benefits payable for sickness or temporary disability in accordance with national laws and regulations? |
Total number of replies: 100.
Affirmative: 77. Algeria, Angola, Austria, Barbados, Belarus, Belgium, Benin, Brazil, Bulgaria, Cambodia, Cameroon, Canada, Central African Republic, Chad, Chile, China, Colombia, Comoros, Costa Rica, Cyprus, Czech Republic, Ecuador, Ethiopia, Finland, Germany, Ghana, Greece, Guyana, Honduras, India, Indonesia, Islamic Republic of Iran, Jamaica, Jordan, Republic of Korea, Kuwait, Latvia, Lithuania, Luxembourg, Malaysia, Mali, Mauritius, Mexico, Republic of Moldova, Morocco, Mozambique, Netherlands, Nicaragua, Norway, Pakistan, Papua New Guinea, Peru, Philippines, Portugal, Qatar, Russian Federation, San Marino, Saudi Arabia, Slovakia, Slovenia, South Africa, Spain, Sri Lanka, Suriname, Switzerland, Tajikistan, Thailand, Togo, Trinidad and Tobago, Tunisia, Turkey, Ukraine, United Arab Emirates, United Kingdom, United States, Viet Nam, Zimbabwe.
Negative: 13. Australia, Bahrain, Botswana, Croatia, Cuba, Egypt, Estonia, France, Italy, Kenya, Namibia, Niger, Syrian Arab Republic.
Other: 10. Argentina, Congo, Denmark, El Salvador, Hungary, Japan, Lebanon, New Zealand, Oman, Venezuela.
Angola. Economic and social conditions not being the same in all member States, the instrument must be flexible.
Argentina. A compulsory social security scheme should be set up to provide benefits at the level of the worker's normal average earnings.
CGT: Yes. Provided that the benefits are sufficient to maintain the mother and child, to respond to the increase in the number of women who are in charge of families.
UIA: Yes.
Australia. Overall wealth in a member State should be considered in assessing the development and capacity of that State's social security and economic systems. However, if the defining of rates of benefit is not supported for developed economies, it is also not supported for developing economies. Again, this question seems to pre-suppose a social insurance system, with its focus on rates of payment and comparison between paid maternity and sick leave. It is possible that some developing countries might pay 100 per cent of earnings for sick leave, as does Australia, and this would thus impose the highest standard. This proposal should not be included in the Convention or Recommendation, as it does not adequately recognize the different conditions that exist in various countries.
ACTU: Yes.
Austria. BAK: The level of two-thirds of previous average earnings should be the minimum "floor" level.
Azerbaijan. Azerbaijan Trade Unions Confederation: Yes.
Bahrain. The provision of benefits in the manner prescribed, or according to national legislation, is not enough. The Member is bound by the Convention, notwithstanding its economic situation.
Belgium. Such a provision would not be necessary if question 9(1) were settled as we have suggested.
Botswana. Should be left to the financial capacity of member States.
Brazil. CNC and CNI: No.
CNF: Benefits should be at least equal to the minimum to ensure maintenance of the woman and her child.
Canada. CLC: Yes.
Central African Republic. On condition that there is a strong will to bring the level of benefits up to that foreseen in the Convention relatively soon.
Chile. With due adjustment, taking into account the obvious difference of objective between sickness benefit and maternity benefit. This should be clearly indicated as an exception to Paragraph 1 above.
CPC: Each nation should determine its own policy in this respect.
China. The expression "economy and social security system are insufficiently developed" must be defined. Otherwise, the level of maternity protection may actually be lowered.
Colombia. Ideally, 100 per cent of the mother's salary should be fixed as the minimum, and legislation governing the benefit should be based on the basic income for the purposes of contributions to the social security system.
Congo. It is not necessary to include this in a Convention.
Costa Rica. Provided that this minimum level is adequately justified by the member State and there is a commitment to increasing the amount periodically over a defined period up to the full level of income received by the woman before the beginning of maternity leave.
Croatia. Croatian Association of Employers: Yes.
Cuba. If the social security system is insufficiently developed and its coverage is not general, the Member cannot be deemed to be complying with the provisions of the Convention.
Czech Republic. UZS R: No.
Denmark. Benefits during maternity leave should not be linked with sickness benefit.
Equal Status Council: Comparison should not be made between maternity leave, disease and temporary disabilities.
LO: Such a linkage would offer a minimum of social protection if such national legislation exists.
Dominica. CSA: Yes. However, measures should be addressed speedily to improve the social security system.
DAWU: No.
DTU: Yes.
WAWU: Yes.
Ecuador. It is the minimum.
CONAMU: The Convention should ensure that other contingencies are not favoured over maternity, even in the case of precarious economies and weak social security systems.
UGTE: No. Our legislation makes no provision for sickness benefits. It does provide for temporary incapacity and stipulates a value of 75 per cent of remuneration. The benefit should fully cover the maintenance of the mother and her child on the basis of real costs.
Egypt. Egyptian Trade Union Federation: Yes.
El Salvador. In El Salvador, these provisions are ensured by the national social security programme and provisions in national legislation.
Estonia. Estonian Confederation of Employers and Industry: Yes.
Finland. KT.: No.
SAK, STTK and AKAVA: Yes, only if paragraph 9(1) is absolutely unrealistic, and taking into account the needs of the mothers and their children.
France. CNPF: Yes.
CFDT: Yes. Following consultation with the social partners.
CFTC: Yes. So as not to render meaningless those provisions that cannot currently be implemented.
CGT-FO: Yes. Only if the benefits are of a sufficient level.
Germany. BDA: See 9(1).
Ghana. The level of cash benefits should be left to individual States to determine.
Hungary. The present text of the Convention offers no room for alleviations of this kind. The introduction of a rule allowing for partial exemption would be acceptable, provided that the Convention makes it mandatory to increase the provision level continuously when the changed economic situation of the member State allows.
India. AITUC: No. Cash benefits should be as indicated in Question 9(1).
Bharatiya Mazdoor Sangh: No. It would be unwise to deem a country in compliance with the Convention if benefits are provided at a rate lower than the minimum. Instead, minimum standards for under-developed, developing and developed countries should be prescribed.
Centre of Indian Trade Unions: No.
HMS: No. No Member should be deemed to be in compliance with the Convention without actual compliance under any circumstances.
Iraq. GFTU: Yes.
Italy. CONFINDUSTRIA: Should be handled through collective bargaining or national legislation.
Japan. See Question 9(1). "Members whose economy and social security system are insufficiently developed" is unclear and difficult to determine. It is inappropriate to set double standards depending upon whether the economy and social system are insufficiently developed or not.
Republic of Korea. Developing countries should be deemed in compliance with the Convention as long as they provide a certain amount of allowances. This kind of flexible criteria can contribute to increasing ratifications.
FKTU: No.
Lebanon. The question remains as to whether sickness or temporary disability benefits provided in accordance with national laws and regulations can ensure full and healthy maintenance for the woman and her child with a suitable standard of living.
Lithuania. Lithuanian Workers' Union: No. The maternity and birth benefits should be higher.
Mozambique. Each country will thus be able to adopt the Convention in accordance with its own situation.
OTM: Yes. The less-developed countries should comply with this provision in accordance with their national social security scheme.
Namibia. Members not in compliance should not ratify or should cancel the ratifications.
NEF: Yes.
NUNW: Yes.
New Zealand. It is unclear whether the benefits envisaged by this question would be required to be provided to all employees on maternity leave, or parental leave, or whether only those employees who qualify under national laws and practices are required to receive a rate of cash benefits no lower than that received by those people on sickness or temporary disability benefits. This Government strongly disagrees with the first scenario, as this would severely restrict the ability of member States to place qualifying conditions on benefits. All governments should be able to set the level of cash maternity benefits in any manner according to national law and practice, that specifically enables variations in economic and social conditions to be taken into account.
NZEF: A provision of this nature exhibits a degree of prescription which could cause countries real difficulty and could affect ratification.
Niger. The State should not be obliged to undertake commitments which it cannot honour.
Oman. The Member would be fulfilling its commitments towards the protection of motherhood.
Pakistan. National laws and regulations should determine the criteria of benefits, or workers and employers should decide through bilateral agreement.
PNFTU: Yes.
Peru. Cash benefits should allow the woman to face pregnancy and childbirth in an appropriate manner.
CUT: No. Given the current tendency to reduce social security benefits, this could lead to the lowering of maternity benefits. Countries should be encouraged to improve their social security services.
Philippines. A Member should only grant benefits it can afford in accordance with its national laws and regulations.
Poland. KPP: Yes.
OPZZ: No.
Portugal. This possibility could increase ratification by such countries.
UGT: No. This would be a serious retrograde step. The revision of a Convention should be with a view to progress. Maternity should be given privileged treatment. It is untenable to link maternity to illness or temporary incapacity.
Qatar. May provide flexibility in compliance with the Convention.
Slovakia. The phrase "economy and social security system are insufficiently developed" should be clarified.
South Africa. BSA: Yes. BSA does not support the contention that a maternity benefit should be higher.
Spain. CIG: No.
Suriname. ASFA: No.
FAL: No.
Switzerland. UPS: Define "insufficiently developed".
Togo. If the sickness and disability benefits are set with regard to the economic level of the member State.
Trinidad and Tobago. NATUC: What will be the effect of that Member ratifying such a Convention? A mechanism must be worked out.
Turkey. TÜRK-IÔ: No.
United Kingdom. The European Directive on the Protection of Pregnant Women at Work requires maternity benefits for employees to be at least as much as a woman would receive were she off sick.
United States. The same standard should apply to developed countries as well.
AFL-CIO: Yes, provided that the Member commits to upgrading benefits when its economy and social security system permit, and that its compliance status is reviewed periodically to determine whether it is meeting its commitment.
Uruguay. National Chamber of Commerce and Chamber of Manufacturers: No. In accordance with national law and circumstances of each country.
Venezuela. Benefits should be equivalent to or higher than sickness or disability benefits in accordance with national legislation.
CTV: Yes.
Viet Nam. The implementation of the Convention should be flexible
in this regard to encourage compliance.
Qu. 9(4) |
|
Should a Member which avails itself of the possibility afforded in paragraph 3 above explain the reasons therefor in its first report on the application of the Convention under article 22 of the Constitution of the ILO, and indicate the rate at which cash maternity benefits are provided, and describe in its subsequent reports the measures taken with a view to progressively raising that rate? |
Total number of replies: 101.
Affirmative: 89. Angola, Austria, Bahrain, Barbados, Belarus, Belgium, Benin, Botswana, Brazil, Bulgaria, Cambodia, Cameroon, Canada, Central African Republic, Chad, Chile, China, Colombia, Comoros, Congo, Costa Rica, Cyprus, Czech Republic, Denmark, Ecuador, Egypt, El Salvador, Estonia, Ethiopia, Finland, France, Germany, Ghana, Greece, Guyana, Honduras, Hungary, India, Indonesia, Islamic Republic of Iran, Italy, Jamaica, Jordan, Kenya, Republic of Korea, Kuwait, Latvia, Lebanon, Lithuania, Luxembourg, Mali, Mauritius, Mexico, Republic of Moldova, Morocco, Mozambique, Netherlands, Nicaragua, Niger, Norway, Pakistan, Papua New Guinea, Peru, Philippines, Portugal, Qatar, Romania, Russian Federation, San Marino, Saudi Arabia, Slovakia, Slovenia, South Africa, Spain, Sri Lanka, Suriname, Switzerland, Tajikistan, Thailand, Togo, Trinidad and Tobago, Tunisia, Turkey, Ukraine, United Arab Emirates, United Kingdom, Venezuela, Viet Nam, Zimbabwe.
Negative: 7. Algeria, Argentina, Australia, Cuba, Malaysia, Namibia, Syrian Arab Republic.
Other: 5. Croatia, Japan, New Zealand, Oman, United States.
Algeria. This clause might discourage adherence to the Convention, especially since it refers to countries whose systems are insufficiently developed.
Argentina. CGT: Yes. Monitoring the effective implementation of the Convention is essential.
UIA: No.
Australia. All Members should explain both the cash and medical benefits provided in their country, as well as how these benefits are financed, in all article 22 reports.
ACTU: Yes.
Azerbaijan. Azerbaijan Trade Unions Confederation: Yes.
Belgium. Since adequate cash benefits are a basic principle, exceptions should gradually disappear.
Botswana. See 9(3) above.
Chile. Those member States are in a special situation and must periodically report upon the possibilities they have of progressing towards these standards.
Colombia. It is important to review the experiences of member States concerning the application of Conventions, as their difficulties and limitations will serve as useful references in subsequent reviews.
Congo. In accordance with the economic progress of the country concerned.
Croatia. This obligation should be determined if final text contains a provision which would permit the exclusion mentioned.
Croatian Association of Employers: Yes.
Cuba. See 9(3). In the situation described, the Convention should not be ratified and the Member should report, under article 19 of the Constitution, which social security benefits apply to these cases and the measures proposed to progressively raise these rates.
Dominica. CSA: Yes.
DAWU: Yes.
DTU: Yes.
WAWU: Yes.
France. CFDT: Yes. Following consultation with the social partners.
CFTC: Yes. To avoid abuse and to prevent States from providing less than the minimum required by the ILO.
Germany. BDA: See 9(1).
Honduras. COHEP: Yes. However, social security will vary according to countries' economic capacity. It is not possible to lay down rigid rules applicable to all countries.
Hungary. If the Convention allows this possibility, it should be limited to the shortest possible period of time. This objective is appropriately served by instructing the member State to report continuously.
India. Bharatiya Mazdoor Sangh: Yes. If such a right is given, constant follow up is necessary to persuade progressive application by Members.
Centre of Indian Trade Unions: No.
National Front of Indian Trade Unions: Yes. Member States should also specify a timeframe for fully implementing the Convention, subject to the development of the economy.
Indonesia. To control and identify the progress.
Iraq. GFTU: Yes.
Italy. CONFINDUSTRIA: Should be handled through collective bargaining or national legislation.
Jamaica. JEF: No.
Japan. See 9(1) and 9(3). This provision is also unnecessary.
Republic of Korea. With the flexible standard suggested in the comment to Question 9(3), each nation could be made to report on the progress toward the international standard level and to commit itself to reaching the goal.
Lebanon. This procedure should be followed in all cases involving exclusion from the application of principles. But it should be left to individual States to determine the measures to be taken to raise cash benefits in accordance with its economic development, its social security system and its social and living conditions.
Malaysia. MAPA: Yes.
Namibia. NEF: Yes. As long as this report remains consistent with national laws and regulations and economic viabilities.
NUNW: Yes.
New Zealand. See 9(3).
Niger. This would allow a Member to justify national measures.
Oman. Because it is important to provide information about the Convention and to benefit from such information in the future.
Philippines. To provide flexibility to Member countries who have problems in fully applying the provisions of the Convention.
Peru. Exceptions must be fully explained to avoid arbitrariness.
Poland. KPP: Yes.
OPZZ: Yes.
Portugal. This may enable appraisal of the States' efforts towards a gradual increase in benefits.
UGT: No.
Russian Federation. To assess the effectiveness of action taken by Members.
South Africa. BSA: No.
Spain. Given that it is an exceptional case, all these safeguards should apply.
Switzerland. UPS: No. This is a totally unrealistic approach.
Togo. Such a report would allow evaluation of the application of the instrument by the State and of future prospects.
Trinidad and Tobago. NATUC: The Member should be called upon to provide proof of the particular country's experience.
Turkey. TISK: No.
United States. An explanation of the rate would be an appropriate question for a first report under article 22, but it should not be assumed that the rate needs to be raised.
USCIB: No. Why should a developing country with less administrative resources have a greater reporting and compliance burden?
AFL-CIO: Yes.
Uruguay. National Chamber of Commerce and Chamber of Manufacturers: Yes.
Venezuela. A Member which makes use of this possibility should explain in each report the reasons for and rates of cash maternity benefits.
CTV: A Member in this position should keep the relevant ILO departments informed of any measures it adopts.
Zimbabwe. ZCTU: Yes. Implementation should be monitored and those consulted should be indicated.
This question deals with the provision of cash benefits and the benchmarks for the rate at which such benefits should be paid. Subparagraphs (a) and (b) of the question reflect two possible methods for calculating cash benefits, one based on earnings and the other based on a flat rate system. The intention was to take into account the differences in national systems of the manner of calculating benefits. The question presupposes that the methods used in countries are based on one of the two systems, but it does not exclude a combination of both.
Subparagraph (a) reflects the method used by countries with a system for calculating benefits based on earnings using two possible methods of calculating those benefits. In that subparagraph, a difference is made between benefits based on a percentage of previous earnings, which term was intended to include allowances, and a system which takes into account a portion of earnings, for instance earnings without an allowance component, or earnings on which pensions are based, etc. Subparagraph (b) reflects the situation in countries which use a flat rate system, rather than one based on earnings.
The question also addresses the situation of developing countries which may not be in a position to meet immediately the standards for providing benefits under (a) or (b). Such a flexibility provision is found in many Conventions to take account of- the situation of countries whose economies and social security systems are not fully developed.
Paragraph 1
The replies reflect broad agreement on the general principle that cash benefits should be paid to women during maternity leave and that those 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. A number of replies expressed concern that the reference to "suitable standard of living" was subjective, vague or unrealizable. The Office notes that the same wording exists in Convention No. 103, that such a standard would clearly vary from country to country depending on the social and economic circumstances of the country concerned and that one of the points of reference of such a standard could be the minimum wage. Based on the replies received to this question, the Office has formulated Point 9(2). This provision corresponds to Article 4(2) of Convention No.103.
Many replies to subparagraphs (a) and (b) interpreted the question as permitting a Member to choose between option (a) or (b) or to implement a combination of (a) and (b). The Office considers that either of these systems or their combination would meet the requirements of the Convention as long as their application did not give rise to discriminatory treatment. It has therefore decided to retain the text in Point 9(3) of the Proposed Conclusions with a minor modification to clarify "the amount taken into account for the purpose of computing benefits".
One government suggested that the question presupposed that the benefit will be payable from social insurance, since the focus was on rates of pay. The formulation of the question was broader so as to cover not only social insurance schemes but also other sources of financing benefits, whether public or private. In this regard, the issue of individual employer liability contained in Article 4(8) of Convention No. 103 was not specifically addressed in the Questionnaire. The same government also expressed concern that the resulting provision would conflict with other existing standards concerning the payment of maternity benefits. The Office considers that such a conflict would exist only if it resulted in a lowering of such benefits. The Office considers that the method set out in subparagraph (a) would comply with the maternity protection provisions of the Social Security (Minimum Standards) Convention, 1952 (No. 102). To the extent to which the flat rate method in subparagraph (b) could result in a lower amount of benefits being paid than those provisions of Convention No. 102, the question of compatibility may well arise. The Office has not proposed any changes to the text to take account of this comment, leaving it to the Conference to consider its implications. The Office, however, notes that in addition to meeting the standard set in Point 9(2), the wording "appropriate amount" qualifies the flat rate benefit to be paid.
There was some support in the replies for leaving the income-replacement provisions to national law and practice so that the new Convention would be more ratifiable. Other comments suggested the need for flexibility to combine social security schemes and employer-financed benefits. Some other replies considered that the detailed proposals contained in subparagraphs (a) and (b) could have unintended labour market effects, such as disincentives to employ women or increased labour costs leading to an overall decrease in employment. There was, however, wider support for a method of income-replacement based on earnings.
The Office's formulation in Point 9(3) therefore does not address how cash benefits are to be paid nor does it prescribe qualifying conditions. These are left to national laws and regulations and other means. The provision in Point 9(3) draws upon Article 4, paragraph 6, of Convention No. 103 with respect to one method of computing benefits, but includes other methods not provided for in that Convention.
Paragraph 2
Although the majority of replies did not object in principle to a periodic review, some replies questioned the reasonableness of such a provision, particularly for those countries which already provide benefits at a level of 100 per cent or even two-thirds of previous earnings. It was also questioned whether such review should be periodic or as necessary.
Other replies raised the problem of consultation, citing administrative difficulties if such periodic examination is to be linked to reporting requirements under the Convention as well as the fact that many schemes, particularly privately-run schemes, are not subject to such scrutiny. One government considered that such a provision should be included in the Recommendation.
Taking account of the replies received, the Office has formulated the text in Point 13 adding the word "appropriateness" to introduce the necessary flexibility.
Paragraphs 3 and 4
The question in paragraph 3 raised concerns which were reflected in the replies suggesting that such a provision might well impose greater obligations on developing countries if, for instance, sickness benefits were paid at 100 per cent of the employee's wage. One government considered the question presupposed a social insurance system with a focus on rates of payment and a comparison between paid maternity and sick leave. Other replies objected to the link to sickness benefits and considered the provision too prescriptive. A few replies considered the phrase "Members whose economy and social security system are insufficiently developed" to be unclear and felt that the exception would impose a double standard. Some developing countries considered the provision unnecessary. Despite these concerns, a strong majority of responses favoured the proposal.
Regarding the follow-up mechanism, some replies suggested that it could impose an undue burden on the resources of developing countries. Others stated that countries which could not meet the requirements of Question 9(1) should not ratify the Convention. There was none the less broad support for the inclusion of the provision, which sought to encourage the countries concerned to raise progressively the rate of benefits.
Taking into consideration the replies received, the Office has retained the formulation contained in the question in Point 10(1) and (2) of the Proposed Conclusions. Compliance with this provision is limited to the requirement contained in Point 9(2). The Office notes that there is no equivalent provision in Convention No. 103, but that many ILO Conventions contain similar provisions providing for flexibility to take account of the situation of developing countries which are not able to meet immediately all the requirements of the Convention.
It is to be noted that both the economy and the social security system must
be insufficiently developed in order for a Member to avail itself of this provision.
1. ILO: Maternity protection at work, Report V(1), International Labour Conference, 87th Session, Geneva, 1999.
2. Replies that arrived too late to be included in the report may be consulted by delegates at the Conference.
3. The reply from the Government of Argentina consisted of observations from the National Council of Women.
4. The reply from the Government of Bulgaria consisted of observations by the Ministry of Health, the Ministry of Justice and European Legal Integration and the National Social Security Institute.
5. The reply from the Government of Jamaica was formulated by the Bureau of Women's Affairs.
6. The reply from the Government of Namibia consisted of observations from the Social Security Commission.
7. The reply from the Government of the Philippines consisted of observations from the Labour Advisory and Consultative Council.
8. To meet the wishes of the Conference, the replies have been presented as concisely as possible.
9. Article 19(8) of the Constitution provides as follows: "In no case shall the adoption of any Convention or Recommendation by the Conference, or the ratification of any Convention by any Member, be deemed to affect any law, award, custom or agreement which ensures more favourable conditions to the workers concerned than those provided for in the Convention or Recommendation."
Updated by HK. Approved by RH. Last update: 26 January 2000.