International Labour Conference

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87th Session Geneva, June 1999
Report V(2)	Maternity protection at work
	Revision of the Maternity Protection Convention (Revised), 1952 (No. 103), and Recommendation, 1952 (No. 95)

 

Qu. 10

Where a woman fails to qualify for benefits referred to in Question 8 above, should she be entitled to adequate benefits out of social assistance funds, subject to the means test required for such assistance?

Total number of replies: 98.

Affirmative: 85. Angola, Argentina, Austria, Bahrain, Barbados, Belarus, Belgium, Benin, Botswana, Brazil, Bulgaria, Cambodia, Cameroon, Canada, Chad, Chile, China, Colombia, Comoros, Costa Rica, Croatia, Cuba, Cyprus, Czech Republic, Ecuador, Estonia, Ethiopia, Finland, France, Germany, Greece, Guyana, Honduras, India, Indonesia, Islamic Republic of Iran, Italy, Jamaica, Jordan, Kenya, Republic of Korea, Kuwait, Latvia, Lithuania, Luxembourg, Malaysia, Mali, Mauritius, Republic of Moldova, Mozambique, Netherlands, New Zealand, Nicaragua, Norway, Oman, Pakistan, Papua New Guinea, Peru, Philippines, Portugal, Romania, San Marino, Saudi Arabia, 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, Uruguay, Venezuela, Viet Nam, Zimbabwe.

Negative: 5. Australia, El Salvador, Mexico, Namibia, United States.

Other: 8. Algeria, Congo, Denmark, Hungary, Japan, Lebanon, Morocco, Qatar.

Algeria. This is difficult to put into practice in countries without a system of social assistance benefits. Another solution might be to provide compensation as for illness under more flexible conditions.

Argentina. CGT: Yes. Social security should cover medical benefits for the mother and child and a minimum level of cash benefits.

UIA: Yes.

Australia. We support the provision of benefits out of social assistance funds, subject to a family means test. However, as framed, this proposal fails to recognize countries such as Australia which provide adequate social security without a social insurance scheme in place.

ACTU: Yes.

Azerbaijan. Azerbaijan Trade Unions Confederation: Yes.

Bahrain. If a woman's right to be paid her wages during her maternity leave is not taken into account, then she should be provided with cash benefits according to the Convention.

Barbados. Benefit may be payable on the spouse's contributions in the event that the woman does not meet the requirements. Otherwise, where the means test deems it necessary, assistance funds as applicable to national regulations and practices.

Belgium. Yes with reservations. The possibility that a woman would have no right to adequate benefits should gradually be eliminated.

Botswana. But this should depend on the level of development of a particular country or affordability.

Brazil. CNF: Equal to at least the minimum for maintenance.

Bulgaria. Depending on the actual situation in each country.

Canada. CEC: No. Question not appropriate in the context of a Convention on labour standards.

Chile. CPC: Only to medical benefits.

Colombia. This depends on the possibilities of the social or public assistance systems of individual countries.

CGTD: If a woman fails to qualify for benefits because she is unemployed, the State should provide her with those benefits listed in Question 8, which should be charged to the social assistance funds.

Comoros. Social assistance funds have not yet been established in Comoros.

Congo. The instrument should apply to all employed women without distinction.

Denmark. She should be entitled to other social assistance.

Dominica. CSA: Yes.

DAWU: Where applicable.

DTU: Yes.

WAWU: Yes.

Ecuador. In the absence of entitlements on any previously established grounds, she must be granted social assistance.

National Federation of Chambers of Industry of Ecuador: Yes. Social assistance should be state-funded.

UGTE: Yes. Social security should protect maternity, irrespective of the woman's employment status.

Egypt. Federation of Egyptian Industries: Yes.

Egyptian Trade Union Federation: Yes.

Ethiopia. Other means should be devised in consultation and agreement with employers' and workers' organizations, in accordance with national laws and regulations.

CETU: Yes. If that is the only solution possible.

Finland. TT, LTK and Federation of Finnish Enterprises: Not automatically. The conditions for the entitlement to benefits out of social assistance funds should be left to member States to decide.

France. CNPF: Yes. For benefits in kind.

CFDT: Yes. This measure could favour women with low incomes.

CFTC: Yes. To ensure all pregnant women and those with a young infant a minimum living wage.

Germany. Other benefits, in addition to those referred to in Question 8 and social assistance benefits, should also be considered.

Ghana. NCWD: Yes.

Guyana. An unemployed woman can receive benefits based on her employed spouse's contributions.

Honduras. Subject to the social security of each member State.

Hungary. It is justified to extend the circle of means-tested social benefits to women who are pregnant or have recently given birth.

India. National Front of Indian Trade Unions: Yes. Women should get assistance from the welfare fund according to the rules of the organization. Employees' organizations may also grant assistance from their welfare fund.

Indonesia. Provided as a matter of right according to the maternity conditions.

Iraq. General Federation of Trade Unions: Yes.

Japan. The meaning of "social assistance funds" is unclear. Nevertheless, the benefits referred to in Question 8 should be provided on the basis of systems established by each Member in accordance with their individual situations. It is inappropriate to stipulate in the Convention specific measures for cases where the conditions required by each system are not fulfilled. It is sufficient to stipulate in the Recommendation that some measures should be taken. There should be no provision beyond this.

JTUC-RENGO: Yes.

Jordan. Federation of Jordanian Chambers of Commerce: No.

Republic of Korea. Means should be prepared to complement the social insurance system. How the benefits are paid under the system and those covered by the schemes should be determined by the specific conditions of each country.

Lebanon. Subject to the availability of social assistance funds and rules governing their use. This item should be moved to the Recommendation.

Lithuania. Lithuanian Workers' Union: Yes. Adequate benefits from social assistance funds must be available, because unemployment is so high.

Malaysia. If such funds are available.

MAPA: No.

MEF: No.

Mauritius. MEF: Not appropriate.

Mexico. Not all national social assistance systems make provision for the granting of cash benefits. The majority of systems provide benefits in kind, such as medical, hospital and pharmaceutical care.

Morocco. Where available.

FCCIS: Yes.

CDT: Yes.

Namibia. Only persons that qualify and contribute.

NEF: Yes. Social assistance funds should be earmarked for that purpose, otherwise there is a risk of draining other funds.

NUNW: Yes. Because she is contributing to the funds.

New Zealand. The level of adequate benefits and any means tests should be decided by the member States' governments, in accordance with national laws and regulations.

Oman. As long as the need for such assistance has been substantiated.

Pakistan. PNFTU: Yes.

Papua New Guinea. If the Convention will cover all working women.

Peru. CUT. The wording in Article 4(5) of Convention No. 103 should be maintained.

Philippines. If the government can afford to fund such benefits.

Poland. KPP: Yes.

OPZZ: Yes.

Portugal. To the extent that the national situation permits.

CIP: The fixing of benefits and the manner of their financing are not matters that should be included in a Convention.

CGTP: No.

Qatar. These funds should be either governmental funds that provide benefits to the categories in need, or non-profit funds with their own rules and regulations under which they provide assistance to specific individuals and categories according to terms defined by the fund itself.

South Africa. BSA: The normal rules of the social security fund/provision should apply.

Spain. Article 4(5) of Convention No. 103 already makes provision for this case.

Sri Lanka. Most countries have no such system.

Switzerland. For women with low incomes.

UAPG and CP: This falls in the domain of general social assistance, rather than provisions to cover loss of earnings.

VSA: Yes. Basic provisions for the financing of income benefits should be established. The text of point 20, under "Financing of benefits", should be included in the Convention.

Tunisia. Such a guarantee should be included in the Recommendation.

Turkey. TISK: Yes. Where such funds exist.

United Kingdom. Yes, subject to the qualifying conditions provided for in national legislation.

United States. This should be decided by national law and practice.

AFL-CIO: Yes. Public benefits should be available to supplement or, as necessary, substitute for employer-provided benefits.

Venezuela. CTV: If a woman has an employer, she should be entitled to cash benefits sufficient to meet any necessary expenses.

Viet Nam. It depends on the situation of the country. It should be a recommendation, rather than an obligation.

Most replies from governments, as well as employers' and workers' organizations, expressed broad support for this provision, which recalls the provision of Article 4(5) of Convention No. 103. Some respondents suggested that social security should provide benefits to a woman on maternity leave, irrespective of her employment status. Others disagreed, stating that only those workers who had contributed or otherwise qualified should receive social assistance. Some replies stated that the ability to pay such benefits should be subject to the existence of social assistance funds, the rules for their use and the economic circumstances of each country. Several replies emphasized that the level of benefits should be determined pursuant to national law and practice. The question was raised as to whether such assistance might be provided as benefits in kind.

The proposal as formulated in Point 9(4) of the Proposed Conclusions indicates that the entitlement to benefits from social assistance funds would apply to women who do not meet the conditions to qualify for cash benefits under national laws and regulations or other means referred to in Point 14. See Points 9(1) and 14 in this regard. Concerning the question raised about benefits in kind, the Office is of the view that such a type of benefit is not contemplated by the requirement to provide cash benefits.

Medical benefits
 

Qu. 11

Should a woman be entitled to prenatal, confinement and postnatal care, as well as hospitalization care, when necessary?

Total number of replies: 105.

Affirmative: 96. 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, Egypt, El Salvador, Estonia, Ethiopia, Finland, France, Germany, Ghana, Greece, Guyana, Honduras, India, Indonesia, Islamic Republic of Iran, Italy, Jamaica, Jordan, Republic of Korea, Kuwait, Latvia, Lebanon, Lithuania, Luxembourg, Malaysia, Mali, Mauritius, Mexico, Republic of Moldova, Mozambique, Netherlands, New Zealand, Nicaragua, Niger, Pakistan, Papua New Guinea, Peru, Philippines, Portugal, Qatar, Romania, Russian Federation, San Marino, Saudi Arabia, Seychelles, Slovakia, Slovenia, 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: 2. Kenya, Namibia.

Other: 7. Hungary, Japan, Morocco, Myanmar, Norway, Oman, South Africa.

Argentina. CGT: Yes. These benefits, even if not guaranteed by legislation in force, should be provided by social security, without exception.

UIA: Yes.

Australia. It is appropriate that there is no suggestion as to how medical care must be funded. The benefits should be provided in accordance with national law and practice.

Azerbaijan. Azerbaijan Trade Unions Confederation: Yes.

Bahrain. This would be a form of social security provided by the State with a participation by the employer.

Barbados. The public health care system should meet these requirements. In countries where this is inadequate, alternative provision should be made to finance same.

Belgium. See Question 8. The costs of maternity should be reduced to a minimum or even totally reimbursed. With a view to the economic conditions in each country, the text could be rephrased to incorporate the notion that such care could be progressively included in women's entitlements.

Brazil. In accordance with the legislation of each member State.

CNF: In accordance with Convention No. 102.

Cameroon. Responsibility for payment should be specified.

Canada. CEC: No. It is not appropriate within a Convention on labour standards.

Central African Republic. These benefits should be limited to the period of maternity leave defined in law or in collective agreements.

China. These are minimum protection measures. However, the content of care should be regulated to avoid undue expenses.

Colombia. Health care should be complete, appropriate and adequate. A worker should be given the appropriate medical benefits at all stages of her pregnancy to ensure her health and that of her child.

Comoros. As long as these benefits are not paid by the employer.

Congo. Within the framework of social protection of employed women with a view to giving them the best.

Croatia. The words "when necessary" should be excluded.

Czech Republic. UZS „R: Yes, even in cases where the woman does not pay health insurance. These cases should be guaranteed by the State.

„MK OS: Yes, this should not be restricted only to essential cases.

Denmark. In accordance with the ordinary national health system.

Dominica. CSA: Yes. These should be provided at a minimal fee.

DAWU: Yes, as well as insurance coverage as far as possible.

DTU: Yes.

WAWU: Yes.

Ecuador. CONAMU: In addition to these rights, she should also be entitled to information, education, family planning, timely cancer screening, prevention and treatment of sexually transmitted diseases, haemorrhages and pre-eclampsia. The right to receive emergency treatment should also be included.

UGTE: Yes. Also medical assistance for her newborn child.

El Salvador. If these are indispensable and necessary from the medical point of view.

Ethiopia. Should be handled by the conditions set in national laws, collective agreements and other instruments.

CETU: Yes. That is the very idea of both the Convention and Recommendation.

Finland. TT, LTK and Federation of Finnish Enterprises: This should be left up to the individual countries to decide.

France. CFTC: Yes. Give wide definition to the care to which pregnant workers or those who have recently given birth have a right.

Ghana. This is to ensure that female workers recover fully within the stipulated leave period to return to work on time.

GEA: No.

Honduras. Provided for by each country's social security in respect of medical care.

Hungary. The present text of the Convention may be preserved because it prescribes medical benefits that include the elements concerned.

India. This is absolutely necessary so as to ensure a complete recovery of the mother and proper care of the infant.

National Front of Indian Trade Unions: Medical benefits should be available at all three stages, but hospitalization should be available for at least 15 days between confinement and childbirth. It should be limited to two children.

Indonesia. The instrument should include the freedom of choice between a public and private hospital as mentioned in Article 4(3) of Convention No. 103.

APINDO: Yes. Depending on bipartite agreement.

Iraq. General Federation of Trade Unions: Yes.

Jamaica. JEF: Yes, subject to a medical examination.

Japan. A woman should be entitled to such care. However, it is not necessary to stick to benefits in kind. It should also be permitted to provide cash to help a woman with the medical expenses, separate from the cash benefits for maintenance of living.

NIKKEIREN: These must be applied in accordance with the scope and methods stipulated by national laws and regulations.

JTUC-RENGO: Yes.

Kenya. This would be very costly, especially to developing Members.

Republic of Korea. A broad range of medical services should be provided in relation with childbirth, as far as financial conditions and the social security system of each country allows. For countries which cannot afford the services, a provision regarding a temporary reservation should be prepared.

Malaysia. Subject to certain limitations, at the ratifying country's discretion.

MAPA: No. Employers should not be liable for medical expenses incurred from maternity.

MEF: No. Female employees should bear the cost of pregnancy and confinement.

Mali. Effective coverage should be ensured during all risk periods.

Mexico. From the time the pregnancy is certified.

Republic of Moldova. Such care should be provided free of charge.

Morocco. The current social security system does not cover medical treatment costs. A woman should be entitled to free medical treatment in hospitals in case of need and where no health coverage scheme provides her with the medical care proposed above.

FCCIS: To be negotiated between the social partners (collective agreements).

CDT: Yes.

Mozambique. OTM: The medical benefits should comprise all necessary care.

Myanmar. Female government employees covered by social security are entitled to benefits.

Namibia. Maternity benefits should not include medical benefits. The latter should be provided under another scheme.

NEF: Yes. Either through private funding or state funding.

NUNW: Yes.

Netherlands. The levying of a personal contribution (cost-sharing) should be permitted and the medical care should be necessary in connection with the pregnancy and/or delivery.

FNV: Cost-sharing should not be imposed during hospitalization for confinement.

New Zealand. The specific entitlements for, and qualifying criteria to obtain, medical benefits, are a question for individual Member governments. There should be no mention of these benefits in any instrument adopted.

NZEF: Whether a woman is paid for time off for medical visits connected with her pregnancy is a matter for agreement between the employer and employee. Agreement in such circumstances is unlikely to be withheld.

Norway. Such requirements are assumed to be unproblematic for Norway.

Oman. All possible forms of care are provided free of charge in all hospitals before, during and after confinement.

Peru. CUT: Services should be provided by social security medical services or by private medical services if they are better than public ones.

Poland. KPP: Yes.

OPZZ: Yes.

Portugal. CIP: The definition of medical benefits is a matter for member States and should not be included in a Convention.

UGT: A woman's right to hospitalization for maternity should always be recognized.

Romania. Women should have the right to medical benefits, in the form of effective medical services, where member States have a national health care system, or cash benefits used for medical assistance, supplementary to those referred to above. Free medical services throughout pregnancy and the postnatal period, obstetrics-gynaecological emergency services, infant care, as well as a system of family planning and sex education centres, financially accessible to targeted groups, and free cancer-screening units for women are all considered necessary.

South Africa. The Convention should be more clear regarding the responsibility for ensuring care, i.e. whether it lies with the employer or the State.

BSA: No special treatment should apply.

Spain. Consideration should be given to Article 4(3) of Convention No. 103, which states that "freedom of choice between a public and private hospital shall be respected".

Sweden. It should be considered whether medical benefits in connection with confinement and preventive care should be provided free of charge or at a certain maximum rate. The woman's own medical costs should be kept to a reasonable level, so as to make care available to all.

Switzerland. UPS: These questions go beyond the framework of labour relations.

Trinidad and Tobago. But the particulars and means to give effect require careful study.

United States. Maternity should be treated the same as any other disability.

Zimbabwe. The employer should also shoulder part of the financial burden unless the medical aid systems in place cater for maternity issues.

An overwhelming majority of replies from governments, as well as workers' and employers' organizations, supported inclusion of this provision, which recalls Article 4(3) of Convention No. 103. It differs from that Article in not retaining the qualification regarding freedom of choice of doctor and hospital.

Report V(1), Maternity protection at work, noted that the provision and funding of medical benefits varied widely from country to country. Replies to the questionnaire confirmed that in many countries maternity care is commonly provided through public health or social security systems. The Office therefore felt that a general provision on medical benefits should take account of the different approaches used in member States. The provision, as formulated in Point 9(5) of the Proposed Conclusions, would leave the necessary flexibility to meet the particular circumstances within each country regarding the means of implementation.

Some replies referred to the specific components of the medical benefits to be provided. These are discussed under Question 18 below. A number of comments referred to the cost or financing of medical benefits. Some concerns were raised regarding the employer's liability for medical expenses. Financing of benefits is discussed under Question 19 below.

Protection of employment
 

Qu. 12(1)

Should it be unlawful for an employer to terminate the employment of a woman who is pregnant, absent on maternity leave or additional leave as referred to in questions 5 and 7 above, and during a period following her return to work after such leave, to be prescribed by national laws and regulations, except on grounds unrelated to the pregnancy or childbirth and its consequences or nursing?

Total number of replies: 105.

Affirmative: 103. 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, 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, 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, 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 States, Uruguay, Venezuela, Viet Nam, Zimbabwe.

Other: 2. Japan, United Kingdom.

Algeria. This protection should cease upon return to work, since it is impossible to conceive of termination of employment on grounds related to the consequences of childbirth.

Argentina. CGT: Yes. Where a woman has been dismissed as a result of her pregnancy, legislation should provide for her reinstatement at work or, failing this, payment by the employer of a large sum in compensation.

UIA: Yes. Protection should only apply to grounds related to maternity.

Australia. The preferred option would be to make it unlawful to terminate employment for reasons relating to, or including, pregnancy, rather than not allowing termination around the time of pregnancy. There may be some value in completely prohibiting termination of employment during pregnancy and for a prescribed period of time after the birth occurs, as it is possible that such a measure would lessen termination on discriminatory grounds by allowing a female employee time to reassert herself in the workplace. However, a restraint of this nature on the employer's ability to structure the workplace would seem too great, especially as there could be any number of non-discriminatory reasons for terminating employment.

Austria. The grounds for lawful termination should be restricted to certain exceptional cases; otherwise, the danger exists of employment protection becoming meaningless. Moreover, termination should be subject to the consent of the competent authorities. Paragraph 4(1) of Recommendation No. 95 should be written into the Convention.

Azerbaijan. Azerbaijan Trade Unions Confederation: Yes.

Bahrain. The employment contract during maternity leave is suspended and cannot be violated or terminated, except for reasons that are not related to the pregnancy or confinement.

Barbados. A stipulated period after maternity leave would provide added job security.

Belgium. On the basis of a medical certificate. A problem arises as to whether any additional leave referred to in Question 7 is an extension of maternity leave. This problem could be addressed in the Recommendation. Protection from dismissal could be extended from the notification of pregnancy through a certain set period following the return to work.

CNT: The prohibition of dismissal should be limited to grounds related to maternity, otherwise it could lead to discrimination in favour of mothers. The employment protection proposed here is an improvement on the provisions of Convention No. 103.

Botswana. Termination of employment on grounds of pregnancy is discriminatory.

Brazil. CNC and CNI: No. Protection of employment should be a matter for collective bargaining.

Chile. It is necessary to supplement maternal rights with a prohibition upon acts undermining the dignity of pregnant women or constituting harassment of them.

CPC: The period of exemption should be short so as not to hinder the employment of women of childbearing age.

China. China's labour law and practice have demonstrated that such provisions play an active role in protecting women's rights of employment.

Colombia. CGTD: Women who are employed on fixed-term contracts face a difficult situation if they become pregnant or are absent on maternity leave and employers do not renew their contracts. The new Convention should explicitly prohibit the dismissal of such women workers. One means of resolving this difficulty would be to prohibit the termination of employment of any woman worker during a period of not less than six months after completion of maternity leave.

Congo. In the framework of the Discrimination (Employment and Occupation) Convention, 1958 (No. 111).

Czech Republic. UZS „R: Yes, except where the enterprise ceases to exist, the period stipulated in the employment contract has expired, or the woman has been sentenced to a longer (one year) period of punishment.

„MK OS: Yes. Giving notice should only be permitted where the employer ceases to exist.

Denmark. This is one of the most important provisions of the Convention to prevent discrimination due to pregnancy and maternity.

DA: Such provisions should exist, but they must be regulated within the rules on equal opportunities between genders.

Dominica. CSA: Yes.

DAWU: Yes.

DTU: Yes.

WAWU: Yes.

Ecuador. This must be totally prohibited.

CONAMU: The grounds for exceptions should be clearly established, with medical, psychological and social reports to rule out any connection with the pregnancy or childbirth and its consequences or nursing. Postnatal depression and carrying out maternal obligations are grounds in women's favour and prohibit dismissal.

National Federation of Chambers of Industry of Ecuador: Any violation of the guarantee of job security could be settled using a compensation procedure.

UGTE: Yes. Job security in these circumstances deserves special attention.

Egypt. Even when an absence following her return to work is considered as sick leave.

Ethiopia. This is one of the fundamental rights of women workers and an element of minimum labour conditions that should be respected by the labour partners.

Finland. TT, LTK and Federation of Finnish Enterprises: No. Such provision could be in a Recommendation.

France. CGT-FO: Yes. Legislation should prohibit the termination of employment of a woman within one year following her return to work, except on grounds unrelated to the pregnancy or childbirth and its consequences or nursing.

Germany. Protection against termination of employment should apply even to grounds unrelated to maternity. Any termination that is allowed in particular and exceptional cases should be subject to prior approval by the competent authority. Otherwise, it might be possible to find a way around the protection.

Ghana. Termination of employment on grounds unrelated to pregnancy or childbirth is rational.

India. Bharatiya Mazdoor Sangh: Yes. During a period of one year from confinement, termination should be treated as unlawful if it is related to leave for illness and nursing arising out of maternity.

Iraq. General Federation of Trade Unions: Yes.

Italy. The length of this prohibition should be precisely determined. In Italy, this provision for prohibition lasts from the beginning of the pregnancy until the child is 1 year old.

Jamaica. JEF: No. Moral persuasion should be used, rather than laws and regulations.

Japan. The provision in the Convention should be limited to a minimum scope, for example, during maternity leave and the period provided by national laws or regulations. Provision concerning additional leave beyond this should be in the Recommendation.

NIKKEIREN: The period covered by this provision should be limited to pre- and postnatal leave and the 30 days following the postnatal leave. Application to a nursing period and additional leave exceeds minimum protection.

JTUC-RENGO: Yes.

Lebanon. This is not provided in national legislation. However, abuse of the right to terminate employment on the part of both employer and employee is considered grounds for compensation.

Lithuania. Lithuanian Workers' Union: Yes. Such dismissal causes serious moral and material damage.

Unification of Lithuanian Trade Unions: No.

Mexico. The worker's entitlement to return could be subject to a maximum period of absence.

Republic of Moldova. Under national law, the prohibition of dismissal lasts from pregnancy until the child is 3 years of age

Mozambique. OTM: Any act of dismissal against a woman, because of her pregnancy or during maternity leave, should be prohibited.

Namibia. NEF: Yes. All social partners should have a periodic input into such legislation, because of the possible influence of demographics and labour market employment patterns.

Netherlands. FNV: This protection would be improved if the imposition of sanctions were included. See also Article 11(2)(a) of the CEDAW.

New Zealand. Member States should be able to set conditions in national law under which employers with valid reasons would be able to refuse to grant maternity leave or keep a position open while the employee is on leave. Such refusal should not be treated as a dismissal related to pregnancy, even if the employee resigns as a result.

Norway. Under national law, pregnancy shall be regarded as the real reason for any notice given while the employee is pregnant, unless other valid reasons are given. An employer will have to produce evidence for terminating employment. During leave, the protection against dismissal is absolute.

Oman. Providing that the use of such a right is not abused and the requirements and the interest of work are ensured.

Papua New Guinea. If conditions prescribed by national legislation are not met.

Poland. Under national law, such termination of employment may only occur in the event of declaration of bankruptcy or liquidation of the employer.

Portugal. The prohibition of dismissal may be ensured by placing the burden of proof upon the employer to prove the motives leading to dismissal.

CIP: It is considered inappropriate for the Convention to include a prohibition on dismissal. The matter should be left to the legislation of member States.

UGT: This rule should take effect from the moment the woman becomes pregnant or the employer becomes aware of the pregnancy. It should be extended beyond the return of the female worker. If nursing is regarded as one of the grounds which do not justify dismissal, it should be included in the scope of protection. The period of protection should not be left to national legislation to determine.

Romania. Termination of employment should only be permitted in extraordinary circumstances unconnected with the woman's condition and with the approval of the competent national authority, once the employer has outlined the reasons for her dismissal in writing. Necessary measures should be taken to protect women against illegal termination.

National Council of Private Small and Medium-sized Enterprises: Yes. Non-compliance should be penalized through fines of a sufficient amount.

Saudi Arabia. Such dismissal could harm the woman's mental health, which could, in turn, harm the child's health.

South Africa. BSA: Employees who fail to fulfil their contracts should be treated accordingly. No special provision should apply in the case of maternity leave. Employers cannot be expected to keep positions open indefinitely in the event of additional leave. The position of SMEs requires special attention.

Switzerland. Such protection exists in Switzerland. None the less, an employment contract can be revoked for just cause. Just cause includes all circumstances which, in good faith, would preclude requiring the person who has terminated the contract to continue the employment relation. The exact motives which gave rise to the dismissal and the party on whom the burden of proof resides have to be determined with precision.

Syrian Arab Republic. Physiological reasons or illness-induced leave are beyond the woman's control, and the law protects her from arbitrary dismissal.

Tajikistan. National law also prohibits discrimination in hiring and reduction of pay on grounds related to pregnancy or having children.

Togo. Such a prohibition in national legislation should apply to employers.

Trinidad and Tobago. NATUC: Yes. There is the perception among employers that pregnancy facilitates the reduction of productivity in the workplace.

Turkey. TISK: No. Any severe restrictions on the employer's ability to respond rapidly to market requirements could become an extremely heavy burden for the undertaking. The continuity of the employment contract may depend on factors outside the employer-employee relationship. It would therefore damage industrial relations to regard the termination of the employment contract as unlawful in all events.

United Kingdom. It should be unlawful for an employer to dismiss an employee, or select her for redundancy in preference to other comparable employees, solely or mainly because she is pregnant or has given birth, or for any other reason connected with her pregnancy or childbirth.

United States. In the United States, adverse employment decisions based on pregnancy are a form of illegal sex discrimination.

AFL-CIO: The Convention should provide that it is unlawful for an employer to terminate a woman's employment because she is pregnant or because the employer believes the woman is or will become pregnant or would be absent on maternity leave or other period of childbirth-related leave, or because of her status as a mother.

Viet Nam. It is necessary to protect women's employment and avoid unfair dismissals.

Zimbabwe. ZCTU: As per Article 4(1) of Recommendation No. 95.

This provision garnered almost unanimous support among governments as well as employers' and workers' organizations. Protection against dismissal was considered to be one of the fundamental elements of maternity protection. The proposed provision has been included as Point 11 of the Proposed Conclusions.

This Point contrasts with Article 6 of Convention No. 103 in two principal ways. First, it provides a longer period of protection, to include the period of pregnancy, absence on maternity leave or additional leave, and a period following the woman's return to work. It is important to note in this context that Article 5 of the Termination of Employment Convention, 1982 (No. 158) provides that pregnancy, absence from work during maternity leave and family responsibilities do not constitute valid reasons for termination. Second, the prohibition of dismissal is no longer absolute. Termination of employment would be permitted on grounds "unrelated to pregnancy or childbirth and its consequences or nursing". Legitimate reasons for dismissal might include serious fault on the part of the employed woman, shut-down of the undertaking, or expiry of the contract of employment, as enumerated in Paragraph 4(2) of Recommendation No. 95. Several replies emphasized that the legitimate grounds for dismissal should be limited to exceptional or extraordinary cases or clearly stated.

Regarding the period of protection, a number of replies stated that the total length of this period should be specified, and a few replies suggested exact time periods. The Office notes that there is no uniformity in the laws and regulations in member States in this regard. Point 8(2) has been drafted to enable the maximum duration of any additional leave to be fixed by the competent authority. Similarly, as formulated, Point 11 of the Proposed Conclusions leaves the period of protection following the woman's return to work to be prescribed by national laws and regulations.

A number of replies suggested measures to ensure that the right to employment protection be effectively secured. These included a requirement that the termination of employment be approved by the competent authority upon a written submission by the employer, a showing of "just cause" by the employer, placing the burden of proof upon the employer in the event of a dispute, or imposing a fine upon the employer. The Office proposes to refer this matter to the Conference in view of the significance of the proposal.
 

Qu. 12(2)

Should the Convention provide that a Member adopt other measures to ensure that maternity does not constitute a source of discrimination in employment?

Total number of replies: 104.

Affirmative: 93. Argentina, Australia, Austria, Bahrain, 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, Greece, Guyana, Honduras, India, Indonesia, Islamic Republic of Iran, Italy, Jamaica, Jordan, Republic of Korea, Kuwait, Latvia, Lebanon, Lithuania, Luxembourg, Malaysia, Mali, Mauritius, Mexico, Republic of Moldova, Morocco, Mozambique, Namibia, Netherlands, Nicaragua, Niger, Norway, Pakistan, Papua New Guinea, Peru, Philippines, Poland, 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, Ukraine, United Arab Emirates, United Kingdom, Uruguay, Venezuela, Viet Nam, Zimbabwe.

Negative: 4. Kenya, Oman, Tunisia, Turkey.

Other: 7. Angola, Congo, Hungary, Japan, New Zealand, Portugal, United States.

Angola. Such measures are necessary for countries with discriminatory legislation.

Argentina. Provision of nursery facilities.

CGT: Details of implementation are a matter for legislation or agreements. Our national legislation provides for payment of compensation in cases of discriminatory dismissal.

UIA: No.

Australia. The Convention should provide for Members to undertake to declare and pursue a national policy designed to promote, by methods appropriate to national conditions and practice, equality of opportunity and treatment in respect of employment and occupation, with a view to eliminating any discrimination in respect thereof.

Austria. Such as reintegration assistance and measures ensuring greater compatibility between work and family responsibilities.

BAK: Statutory provisions with regard to equality of treatment. Discrimination on grounds of maternity is often found in probationary employment, limited duration employment and in matters relating to promotion.

Azerbaijan. Azerbaijan Trade Unions Confederation: Yes.

Bahrain. Working mothers' right to employment should not be affected; others should not be given priority in employment.

Barbados. To protect a pregnant woman when an employer changes her work assignment or station because of her appearance.

Belgium. Unless there is agreement on the details concerning these measures, it might be better to include this provision in the Recommendation.

CNT: Inadequate measures could compromise equality of treatment between men and women.

Benin. Provide significant sanctions in the event of non-compliance with the prohibition mentioned in 12(1).

Brazil. CNF: Criminal proceedings against persons committing discrimination; compensation for moral risks and reinstatement in employment of women workers who have lost their jobs as a result of such discrimination.

Cambodia. National legislation should clearly stipulate that married women can have access to employment without discrimination.

Canada. Changing a condition of employment due to pregnancy or maternity leave without the worker's written consent is normally prohibited in Canada. Other measures could also provide for reassignment of pregnant women and nursing mothers under health and safety laws.

CEC: No. The Canadian Charter of Rights and Freedoms, which provides the right to equal protection and benefit of the law without discrimination, must be reinforced.

CLC: Reassignment of pregnant and nursing workers under health and safety laws.

Chile. Measures should include child care as a social responsibility; leave for either parent in case of the child's sickness; prohibition of pregnancy testing; providing coverage to self-employed workers and workers without contracts, when eligible; wage equity; and all measures necessary to ensure that a woman worker's position, working conditions or remuneration do not deteriorate or decline due to her pregnancy.

CPC: Allow pregnant women to take on replacement, temporary or similar work so as not to leave them at the mercy of the informal sector or prostitution.

China. The Convention should specify the "other measures".

Colombia. An inspection system.

Comoros. Employment contracts should not contain non-maternity or celibacy clauses. Sex should not be a criterion for employment.

Congo. The existing arrangements are currently favourable to maternity protection.

Czech Republic. „MK OS: Council Directives 75/11/EEC, 76/207/EEC, 79/7/EEC, 86/378/EEC and 86/613/EEC, pertaining respectively to equal remuneration, equal treatment in employment, equal treatment in questions of social security, equal treatment in occupational systems of social security, and the protection of self-employed women in the course of pregnancy and maternity, should be used as a basis.

Dominica. CSA: Yes.

DAWU: Yes.

DTU: Yes.

WAWU: Yes.

Ecuador. Protection could include fines upon the employer and compensation for the mother.

CONAMU: International Conventions should prevail over national legislation and collective and other agreements.

UGTE: Measures could include penalties for employers' noncompliance, periodic evaluations of employers' treatment of female staff, and compensation to women denied the right to return to work. Supervisory mechanisms are important.

Egypt. All possible measures must be taken to ensure equality in employment.

Ethiopia. Implementation of the fundamental rights of women workers.

Finland. In Finland, it is prohibited to place a worker in a different position due to pregnancy or childbirth or parenthood, obligation to provide for the family or to some other reason related to sex.

TT, LTK, Federation of Finnish Enterprises and KT: No.

France. In France, an employer cannot take a woman's pregnancy into consideration when refusing to hire, cancelling an employment contract during the trial period or changing a job assignment.

CNPF: No.

CFDT: Yes. Certain working conditions are unsuitable for pregnant women, but remedial measures should not give rise to discrimination.

CFE-CGC: Yes. Measures prohibiting direct or indirect inquiry regarding the possible pregnancy of a female job candidate.

CFTC: Yes. No pregnancy test at the time of hiring, no questions regarding the number of children desired.

CGT-FO: Yes. Prohibit, as a condition of employment, a pregnancy test, gynaecological examination or medical certificate attesting to sterilization. Prohibit any clauses annexed to an employment contract restricting the pregnancy of an employed woman.

Germany. The prohibition of discrimination must also apply at the job application stage. While legislation is necessary to ensure equality of treatment, the costs facing employers in small businesses must be taken into account. Legislation is needed to provide for reimbursement of costs.

BDA: Member States should ensure that the employment relationship is not made more difficult by excessive maternity protection measures which are ultimately disadvantageous for women.

DAG: Ensure that the woman can return to her previous post and that protection against termination continues after the woman's return to work.

Honduras. To be covered in the member State's national legislation.

COHEP: Financial sanctions against the employer. Measures to establish the specific causes of discrimination on grounds of maternity. Measures should be specified in a clear and concrete way to prevent doubt or misinterpretation.

Hungary. National legal regulations or other employment policy measures may declare the general prohibition of discrimination, or prescribe special prohibitions and positive discrimination relating to women giving birth to or raising children.

India. These measures should be made flexible and left to the member States to implement according to their national laws and practices.

National Front of Indian Trade Unions: Yes. To strengthen application of the Convention. Adoption of other measures are necessary, when Member countries have many unprotected workers, so as to avoid discrimination.

Indonesia. APINDO: No. Maternity is well accepted by other workers.

Islamic Republic of Iran. Any measures for the benefit of employed mothers should not be considered as a source of discrimination in employment.

Iraq. General Federation of Trade Unions: Yes.

Italy. CONFINDUSTRIA: Should be handled through collective bargaining or national legislation.

Jamaica. JEF: There should be no discrimination in employment, but prior to employment, there is no obligation on the part of employers.

Japan. This provision should be included in the Recommendation rather than the Convention. Appropriate measures to avoid discrimination differ greatly from country to country.

JTUC-RENGO: Yes.

Kenya. Measures taken to give effect to the Convention would suffice.

Lebanon. Provided the possible sources of discrimination are specified.

Lithuania. Confederation of Lithuanian Entrepreneurs/Employers: Yes. The State must compensate the employers for losses incurred owing to the illness of women workers.

Lithuanian Workers' Union: Yes. Through inclusion in labour legislation.

Malaysia. MAPA: Yes. Through national laws and collective agreements.

MEF: No.

Mali. Better legislation regarding gender. More attention to workers with family responsibilities.

Mexico. Subject to national conditions.

Morocco. The elimination of discrimination in employment based on pregnancy, childbirth or nursing should be one of the basic principles to be enshrined by the Convention.

FCCIS: Yes.

CDT: Yes. Other more effective measures; higher fines or even penal sanctions.

Mozambique. The Convention should reflect a woman is entitled to employment in the same circumstances as men.

OTM: Through national labour legislation.

Namibia. NEF: Yes. Affirmative action programmes in the workplace.

Netherlands. Discrimination on the grounds of motherhood is prohibited in the Netherlands, unless the said discrimination is intended to protect the woman.

New Zealand. As long as Members are free to choose the form and type of other measures to be adopted.

Oman. Each Member should have the freedom to take such measures.

Papua New Guinea. National laws and regulations must provide full protection for all.

Peru. Discrimination in employment based on maternity is widespread in the world of work.

CUT: All forms of hostility towards women workers should be prohibited, especially those based on maternity.

Portugal. Obligations to ensure protection of employment may give rise to discrimination against women with respect to their access to employment.

CIP: To be left to the legislation of member States.

CGTP: Yes.

UGT: The Convention should require the employer to prove, in the case of complaint, that cessation of the employment contract for any reason — not only dismissal — was not due to the legitimate exercise of rights related to maternity protection in the broadest sense.

Romania. Measures banning discrimination should be stated expressly in national labour legislation, including special references to maternity. A ban on dismissals is desirable.

Russian Federation. Under national law, these measures include an obligation to find new employment for a woman dismissed as part of a total liquidation of the enterprise.

San Marino. Seniority, career and occupational skill development, vocational training.

Slovakia. Protection of women on the labour market, equality for women and men with regard to parental leave, equality in access to employment, equality of remuneration.

South Africa. The instruments should consider a broadening of the definition of pregnancy to include, for example, anticipated pregnancy and termination of pregnancy, to improve the employment protection of pregnant women and other women of childbearing age.

Spain. Prohibition to modify working conditions or the content of a woman's contract except for reasons which are not discriminatory. All Member countries should make it unlawful to dismiss a woman worker on the grounds of pregnancy or maternity.

CIG: Prohibit any mobility, either functional or geographical, contrary to the mother's wishes during the year following confinement.

CCOO: Reversal of the burden of proof. The employer should prove that the dismissal or sanction is unrelated to the pregnancy.

Switzerland. Prohibit discrimination in employment, including with regard to promotion; provide for appropriate sanctions; lessen the burden of proof required of women; provide suitable protection against unfair dismissal (retaliatory discharge).

VSA: Measures to prevent maternity becoming a source of discrimination, must be defined in specific terms and could be included in the Recommendation.

Trinidad and Tobago. NATUC: Yes. Ensure that all types of discrimination are eradicated, especially those related to women's reproductive role.

Tunisia. Additional protection may be provided in national legislation. Certain measures could be mentioned in the Recommendation.

Turkey. The term "a source of discrimination" is far too broad.

TISK: Yes.

TÜRK-IÔ: Postnatal maternity leave must also be applied to the father. The matter must be dealt within the framework of Convention No. 156.

United Kingdom. Protection from detriment should be provided for. Under United Kingdom legislation, women who are pregnant, have recently given birth or are breastfeeding have additional protection against discrimination under the sex equality legislation.

United States. Pregnancy and any pregnancy-related conditions should be a class legally protected from employment discrimination in all member States.

AFL-CIO: Yes. The Convention should provide that a Member should also prohibit maternity-based discrimination in hiring, assignments, promotion, pay and benefits, and other terms and conditions of employment; and that the Member take all steps necessary to ensure protection and enforcement of the guarantee.

Venezuela. The woman should be protected in her procreative capacity. The international organizations should provide guarantees of her right to employment and protection of that employment, as well as protection in her family life, health, pregnancy and maternity.

Viet Nam. Maternity leave should not impose excessive burdens on an employer, which would result in women being placed in a disadvantageous position. Governments should be required to help employers to pay for maternity leave through tax concessions, for example.

Zimbabwe. Paternity leave should be introduced.

A wide majority of replies supported this provision which has been included as Point 12 of the Proposed Conclusions. This provision, which would require a Member to adopt appropriate measures to ensure that maternity does not constitute a source of discrimination in employment, does not exist in Convention No. 103 and is therefore new. This provision addresses broader types of discrimination in employment than the case of discriminatory dismissal, which was considered under Point 11. The term "employment" includes access to vocational training, access to employment and to particular occupations, and terms and conditions of employment as defined in the Convention concerning Discrimination in Respect of Employment and Occupation, 1958 (No. 111).

A number of comments received in reply to this question raised the issue as to whether the Convention should contain a general obligation that measures be adopted in each country or whether it should contain specific obligations to adopt particular measures. Many comments noted particular measures to be taken to prevent discrimination in employment, such as the need to ensure compatibility between work and family, placing the burden of proof upon the employer in the event of a dispute, or the need for supervisory mechanisms. Others highlighted specific problems which might be addressed by particular measures, such as discrimination in promotion, the inclusion of non-maternity clauses in employment contracts, termination of contract during a probationary period, the reassignment of pregnant or nursing women when normal duties pose a health risk, and the unilateral change in a pregnant woman's work duties based upon her appearance. It was often unclear, however, whether the respondents' intent was to suggest measures to be provided in the Convention or to note examples of the types of measures that could be addressed by national legislation and practice. No specific measure was mentioned more than a few times. Therefore, the proposed provision contains a general obligation to adopt measures, leaving the specific measures adopted to be determined by the law and practice in each country.

It was suggested that the wording "other measures" be replaced by "all necessary" or "all possible measures". Considering these suggestions and the need mentioned in many replies to adopt measures suitable to national conditions, the Office has proposed the wording "appropriate measures".

Several replies stated that unless there was agreement regarding the details of particular measures, the provision should be included in the Recommendation. The Office notes that Point 21, as drafted, provides the possibility to specify other particular measures for possible inclusion in the Recommendation. The Conference may wish to decide which other particular measures, if any, should be included therein.

Implementation
 

Qu. 13

Should the Convention be implemented by means of laws or regulations, except in so far as effect is given to it by means of collective agreements or in any other manner consistent with national practice?

Total number of replies: 104.

Affirmative: 96. Algeria, Argentina, Australia, Austria, Bahrain, Barbados, Belarus, Belgium, Benin, Botswana, Brazil, Bulgaria, Cambodia, Cameroon, Canada, Chad, Chile, China, Colombia, Comoros, Congo, Costa Rica, Cuba, Cyprus, Czech Republic, Ecuador, Egypt, El Salvador, Estonia, Ethiopia, Finland, France, Germany, Ghana, Greece, Guyana, Honduras, India, Indonesia, Islamic Republic of Iran, Italy, Jamaica, Japan, Jordan, Kenya, Republic of Korea, Kuwait, Latvia, Lebanon, Lithuania, Luxembourg, Malaysia, Mali, Mauritius, Republic of Moldova, Morocco, Mozambique, Namibia, Netherlands, Nicaragua, Niger, Norway, Oman, Pakistan, Papua New Guinea, Peru, Philippines, Portugal, Qatar, Romania, Russian Federation, San Marino, Saudi Arabia, Seychelles, Slovakia, Slovenia, South Africa, 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: 2. Angola, Croatia.

Other: 6. Central African Republic, Denmark, Hungary, Mexico, New Zealand, Spain.

Angola. National law and practice must be taken into account.

Argentina. CGT: Yes. National legislation should lay down the minimum provisions, without prejudice to any additional provisions that might be contained in collective agreements.

UIA: Yes.

Australia. The flexibility of this provision is appropriate for the promotion of maternity protection. Suggested wording may be "The provisions of the Convention should be applied by means of laws or regulations or by any other means consistent with national practice, such as court decisions, arbitration awards or collective agreements".

ACTU: Yes. Legislation in the areas of equal opportunity, anti-discrimination, industrial relations and employment should include appropriate provisions.

Austria. By means of legislation or other means consistent with national practice, such as judicial rulings, arbitration awards or general collective agreements.

ÖGB: Yes. Above all by means of laws.

Azerbaijan. Azerbaijan Trade Unions Confederation: Yes.

Brazil. The Convention should stipulate conditions of such a nature that it can be ratified by the largest possible number of member States.

CNC and CNI: No. The law must establish a minimum level; everything else should be left to collective bargaining.

CNF: Preferably through legislation, since collective agreements are often limited in time.

Cambodia. National legislation is applicable to all, whereas collective agreements depend on the will of employers and workers.

Canada. In Canada, laws and regulations usually have precedence over collective agreements and practices. The current wording of this question creates confusion on this point.

CLC: Yes. Laws to ensure minimum protection, collective bargaining to allow improved benefits and conditions.

Central African Republic. By means of law to ensure that provisions are applicable to all.

Chile. It is advisable to establish by law minimum standards which are inalienable for the parties, who are entitled to improve upon these minimum standards. The benefits established above the minimum levels may be written into collective or other agreements.

China. Given that the Convention is a binding instrument, it is preferable that member States adopt laws or regulations to implement it.

Colombia. It should be implemented across the board to avoid any unfairness. The provisions should be included in legislation. Collective agreements only apply to part of labour legislation.

Congo. Through legislation or collective agreements.

Croatia. Only by means of laws or regulations.

Croatian Association of Employers: Yes. Implementation by means of collective agreements or any other manner consistent with national practice should be allowed.

Denmark. Both by law and agreements.

Equal Status Council: A statutory regulation will offer the best protection.

Dominica. CSA: Yes.

DAWU: Yes.

DTU: Yes. Legislative regulations are the only guarantee.

WAWU: Yes.

Ecuador. This may considerably delay application, given that Parliament's cooperation is required.

National Federation of Chamber of Industry of Ecuador: Yes. By means of law and regulations, without detriment to improvements achieved through collective agreements or practice.

CEDOC: Legislation would ensure its general application

UGTE: Yes. Laws or regulations are necessary. Collective agreements protect a small sector of the working population.

El Salvador. Yes, but in accordance with national practice and contracts clauses already provided for in legislation.

Finland. As a rule, by law.

KT: No.

France. CFTC: Yes. Laws are a preferable means to ensure minimum rights, since collective agreements do not cover all employed women.

CGT-FO: Yes. Through legislation.

Ghana. By means of legislation.

NCWD: Yes.

GEA: Yes. In the absence of any agreement, national laws or regulations should guide its implementation to ensure consistency.

Honduras. COHEP: Legislation would be preferable to collective agreements.

Hungary. Any instrument may qualify as permissible, provided that it is demonstrably suitable for promoting the implementation of the Convention and that appropriate information may be provided in the form of regular reports.

India. It should be implemented through national laws and regulations. In certain categories of workers and sectors of the economy, it should be made flexible and left to the collective bargaining agreements. Member States should be left to devise appropriate means for implementation in the unorganized sector.

AITUC: Yes, by national laws and collective agreements consistent therewith.

Bharatiya Mazdoor Sangh: Yes. For indiscriminate and universal application of Convention, it should be implemented by means of laws or regulations for minimum benefits. Freedom be given to extend more benefits than minimum by collective agreements or otherwise.

National Front of Indian Trade Unions: Yes. By legislation providing universal application with stringent penal measures providing compensation in case of breach. It may also be incorporated into collective agreements and contracts of service as a term and condition of employment.

Islamic Republic of Iran. Governments are responsible to ensure the welfare and health of their people. Implementation of this Convention should be consistent with national practice.

Iraq. General Federation of Trade Unions: Yes.

Jordan. By laws and regulations.

Amman Chamber of Industry: Yes. Through laws and regulations in order to keep the obligations and rights clearly distinct.

Republic of Korea. The provisions should take the form of national laws or regulations to reinforce effective compliance. However, member States should be allowed to comply with the standards in other ways as long as they fulfil the Convention in practice.

Lebanon. Through laws or regulations. Laws apply universally, whereas collective agreements apply only to the individuals concerned.

Lithuania. Confederation of Lithuanian Entrepreneurs/Employers: Yes, but not to the detriment of the employer.

Lithuanian Workers' Union: Yes. Its provisions should be included in legislation.

Mali. Legislation to set minimums and collective agreements to extend coverage.

Mexico. Delete the phrase "except in so far as effect is given to it by means of". In many countries, the provisions are applied through national legislation, complemented by collective bargaining.

Morocco. By means of laws or regulations or by means of collective agreements or arbitration rulings.

CDT: Legislation should provide the minimum framework, complemented by collective agreements, etc.

Mozambique. Collective agreements or national practice should not establish conditions which are less favourable than those provided by national legislation.

OTM: Through labour or specific legislation at the national level.

Namibia. NEF: Yes. Laws or regulations with collective agreements consistent with national practice to avoid conflicting situations in practice.

New Zealand. In a manner consistent with national practice.

Oman. Through national legislation.

Papua New Guinea. As long as national laws or regulations give effective protection.

Peru. Effect should be given to the Convention through national legislation. Collective agreements should be complementary.

Philippines. By means of laws or regulations.

Poland. KPP: Yes.

OPZZ: Yes.

Portugal. UGT: The effectiveness of the means of implementation in States' domestic legal systems must be safeguarded. Specifically, if the system of collective contracts means that all workers are covered, either through a national agreement which covers all sectors, or through the conclusion of sectoral agreements which achieve the same result, then this can be accepted. The law will naturally have this effect.

Romania. Application via specific laws.

Russian Federation. National legislation must be amended if it runs counter to or if it fails to take into account the provisions of the Convention.

Saudi Arabia. By means of laws or regulations.

Slovakia. First through national legal regulations with a possibility of collective bargaining.

South Africa. BSA: Ideally through collective bargaining.

Spain. This Convention should be implemented in the same way as other ILO Conventions.

CIG: Yes.

CCOO: Yes.

Suriname. ASFA: By means of laws or regulations.

Sweden. As a rule, the provisions of the Convention should be enforced by law.

Switzerland. UPS: Preferably through collective agreements.

Togo. Preferably through legislation.

Trinidad and Tobago. NATUC: Yes. It requires legal intervention since some unions have been pursuing this issue without success for years.

Tunisia. To take into account the diversity of legal instruments regulating maternity protection in member States.

Turkey. TISK: No. According to the principles of the ILO, it is not mandatory for the provisions of a Convention adopted by the Organization to be integrated into national legal provisions. It would be sufficient to apply them to working life through collective agreements or other measures. Legislative provisions should not be sought as the sole, mandatory means of implementing the Convention.

TÜRK-IÔ: Minimum protection should be provided by legislation, to be further improved by collective agreements.

United Arab Emirates. It is important to implement the Convention by laws and regulations.

United States. AFL-CIO: Provided that any and all forms of implementation must ensure that women are accorded, at a minimum, the rights, protections and benefits provided for in the Convention.

Uruguay. National Chamber of Commerce and Chamber of Manufacturers: Only by means of national legislation.

Zimbabwe. National laws should set minimum standards, then anything above that can be negotiated.

A very strong majority of governments as well as employers' and workers' organizations replied affirmatively to this question, which provides broad possibilities for means of implementation consistent with national practice. The provision has been included as Point 14 of the Proposed Conclusions.

Many comments addressed the respective roles of law and practice. Almost one-fifth of the government replies indicated a preference for implementation through laws and regulations only. A smaller group of governments, joined by a number of workers' organizations, indicated that laws and regulations should guarantee that minimum standards and improvements might be attained through collective agreements. Both groups reasoned that laws apply universally, whereas collective agreements, which are of limited duration, cover only a portion of the employed population. Although the comments showed significant support for implementation through laws and regulations applicable to all with the possibility of improved provisions through collective bargaining, the Office did not discern a clear majority for this position.

Three governments proposed replacing the phrase "except in so far as effect is given to it by other means such as" with the word "or." The effect of such a change would be to place the enumerated means of implementation on an equal footing. Given the significant support for implementation primarily through laws and regulations, the Office has largely retained the original wording.

Two governments suggested including arbitration awards and court decisions among the other means of implementation. In keeping with the wording used in the implementation provisions of other instruments, the Office included these two terms in Point 14. In order to achieve consistency respecting means of implementation, the Office has included a reference to Point 14 in Points 9(1), 9(4) and 10(1) of the Proposed Conclusions.

IV. Content of a Recommendation

Maternity leave
 

Qu. 14

Should the Recommendation provide that, in the framework of the provisions of Question 5 above, Members should endeavour to extend the period of maternity leave to 14 weeks?

Total number of replies: 104.

Affirmative: 75. Algeria, 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, Ecuador, Estonia, Ethiopia, Finland, France, Germany, Greece, Guyana, Hungary, India, Indonesia, Islamic Republic of Iran, Italy, Japan, Jordan, Kuwait, Latvia, Lithuania, Luxembourg, Mali, Mauritius, Republic of Moldova, Morocco, Mozambique, Netherlands, Nicaragua, Niger, Norway, Pakistan, Poland, Portugal, Qatar, Romania, Russian Federation, San Marino, Saudi Arabia, Slovakia, Slovenia, South Africa, Spain, Suriname, Switzerland, Tajikistan, Thailand, Togo, Trinidad and Tobago, Tunisia, Ukraine, United Arab Emirates, Uruguay, Viet Nam, Zimbabwe.

Negative: 23. Angola, Argentina, Australia, Bahrain, Egypt, El Salvador, Ghana, Honduras, Jamaica, Kenya, Republic of Korea, Malaysia, Mexico, Namibia, Oman, Papua New Guinea, Peru, Philippines, Seychelles, Sri Lanka, Syrian Arab Republic, Turkey, United States.

Other: 6. Congo, Denmark, Lebanon, Myanmar, New Zealand, United Kingdom.

Argentina. Twelve weeks are sufficient, but the provisions should be flexible to cover particular cases specified by national legislation. An increase in the maternity leave entitlement would be a disincentive to the employment of women.

CGT: Yes.

Australia. While it is appropriate for the Recommendation to encourage a higher standard, the distinction between maternity leave (to protect the mother's health) and parental leave (to rear a child) begins to blur at about 12 weeks. Now that there is an appropriate standard addressing family responsibilities (Convention No. 156), the maternity protection standard should focus on its core aims, and not attempt to address a wider topic. Additional leave, if required for medical reasons, is addressed in Question 7.

ACTU: Yes.

Austria. Endeavours should be made to extend the period to 16 weeks.

ÖGB: Yes. Attempts should be made to extend leave to at least 16 weeks of minimum maternity leave, since the 14-week period should be included in the Convention.

Azerbaijan. Azerbaijan Trade Unions Confederation: Yes.

Bahrain. The period provided for above is deemed excessive. No recommendation should be made for extending the period of maternity leave.

Belgium. Fourteen weeks or longer, as long as the objectives of protection, i.e. protection of mother and child as well as equality of treatment, are not lost from sight.

Botswana. This should be subject to consultation among the social partners.

Brazil. CNC and CNI: No. Any extension must be the result of collective agreement.

CNF: Fourteen weeks are insufficient for a nursing mother to recuperate and return to work.

Cambodia. See Question 5(2).

Canada. Fourteen weeks would be a good minimum as opposed to 12 weeks.

CEC: No. Before considering prolonging the minimum duration of maternity leave, it is important to induce countries that do not respect the minimum duration of 12 weeks to do so as quickly as possible.

CLC: Yes. Fourteen weeks minimum, 18 weeks recommended.

Chile. If a member State is able to, it should extend the leave to 14 weeks for the benefit of the child's healthy development and to foster breastfeeding and bond formation. The mother's health should not be invoked as the cause of the extension. This could be provided for in some countries in the form of sickness leave.

CPC: No. The Convention is sufficient. Instead of providing protection, the extension of leave is detrimental to the employment of women.

China. The 14-week leave period was formulated during the 1950s. It should be examined in light of scientific development. An appropriate leave period can be determined on that basis.

Colombia. Such extension would depend on the circumstances of each country.

CGTD: Fourteen weeks would be ideal. Some believe that additional benefits would place women workers in an unequal situation in the application for jobs. Extension could be taken into account in the case of illness.

Comoros. In future, 14 weeks should be the 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 3 months.

Croatia. This question should be regulated by the Convention.

Cyprus. If the minimum leave entitlement is fixed at 14 weeks in the Convention, then the Recommendation could provide for a minimum of 16 weeks.

Czech Republic. „MK OS: This should be stipulated in the Convention.

Denmark. Leave of 14 weeks is reasonable.

Dominica. CSA: Yes, with a period of compulsory leave after confinement of 12 weeks.

DAWU: Yes.

DTU: No. Question 7 above has taken care of that necessity.

WAWU: Yes.

Ecuador. CEDOC: We are in agreement with anything that will introduce improvements, but where this is not the case we should maintain the current provisions.

UGTE: Yes. Not only should they endeavour to extend the period of leave, but it should also be compulsory for at least 14 weeks.

Egypt. Egyptian Trade Union Federation: Yes.

El Salvador. The period of 12 weeks is sufficient; any increase to 14 weeks should be left to the discretion of the physician.

Ethiopia. The issue is directly related to the economic and social development of a nation. Efforts to extend the period must be made by each member State.

Finland. SAK, STTK and AKAVA: Preferably to 16 weeks.

France. In conformity with EU Directive 92/85/EEC of 19 October 1992.

CNPF: No.

CFDT: Studies in France claim that 16 weeks' leave would lessen the incidence of premature births and would lower infant mortality.

Germany. Article 8(1) of EU Directive 92/85/EEC prescribes maternity leave of at least 14 weeks.

BDA: No.

Ghana. It should be extended when the need arises, especially in situations when the mother or the child's health condition deteriorates.

NCWD: Yes. Or longer upon the medical recommendation of a government recognized hospital.

GEA: Yes. Where there are postnatal complications.

TUC: Yes. Because of the emphasis on six months' breastfeeding.

Honduras. Only in justified cases of illness, complications at delivery or multiple births.

COHEP: This is a matter for national legislation.

India. In more than 60 member States (41 per cent of total Members), the period of maternity leave is already 14 weeks.

AITUC: No. A minimum of six months' leave should be allowed.

Bharatiya Mazdoor Sangh: Yes. Members should endeavour to extend the period of maternity leave to 14 weeks or more.

Centre of Indian Trade Unions: Yes. Maternity leave can be extended to 135 days.

Indonesia. Where necessary to the health of the woman concerned.

APINDO: No.

Iraq. General Federation of Trade Unions: Yes.

Jamaica. JEF: Yes.

Japan. JTUC-RENGO: The period should be extended to 16 weeks.

Jordan. Provided that the extension of the leave be agreed upon between the employed woman and the employer.

Amman Chamber of Industry: Yes. Provided that the leave is an unpaid one.

Federation of Jordanian Chambers of Commerce: No.

Kenya. Members should endeavour to extend the period to 12 weeks.

Republic of Korea. In reality, many countries cannot meet even the 12-week leave prescribed in the Convention. A discussion point must be given to the ways to enable more nations to fulfil the basic requirements first. A practical approach should be taken to harmonize the duration of leave with the financial conditions of member States. For example, in case of possible extension of the leave, a wage decrease after a certain period of time might be discussed.

FKTU: Yes.

Lebanon. It should be left to member States to determine such extension in accordance with their circumstances, considering the additional financial implications of such extension. States should be under no obligation to extend the period of maternity leave.

Malaysia. MAPA: It could discourage the employment of women.

MTUC: Yes. It would allow mothers to nurse the child.

Mauritius. Any such extension would depend on it being sustainable by the member State.

MEF: No.

Mexico. Such extension would mean the payment of cash benefits equivalent to two additional weeks, to be borne by the social security system. The benefit would cost more and the extended absence of the worker would imply lower levels of productivity in enterprises. Both aspects have an impact on labour costs and could be a reason for limiting the employment of women. Some countries may consider 12 weeks' maternity leave to be excessive.

Morocco. FCCIS: No. To be negotiated.

Mozambique. If conditions permit.

OTM: This extension should be made after consultation with the social partners. In the least developed countries, the extension should be selective and applicable only to complicated cases of confinement.

Myanmar. To maintain better health for mother and child.

Namibia. Twelve weeks are sufficient.

NEF: Yes.

NUNW: Yes. If possible, due to complications.

New Zealand. National law provides the entitlement to maternity leave of one continuous period not exceeding 14 weeks, and other parental leave entitlements of up to 52 weeks.

Oman. No, it is a relatively long period.

Pakistan. Maternity leave may be extended to 14 weeks if insufficient medical facilities are available in the country. The Recommendation should make a relevant provision in this regard.

Peru. CUT: Yes.

Philippines. Extending the period of maternity leave to 14 weeks may be acceptable in progressive countries. In developing countries, employers may object, considering that maternity benefits mean added costs. Such a move might further disadvantage women through a consequent reluctance of employers to hire women.

Portugal. CIP: No. See Question 5(2).

CAP: Repeatedly increasing the length of maternity leave could have an adverse effect on women's access to work and their career development, due to non-employment by companies of women in certain posts.

Russian Federation. Include "if the economic possibilities exist".

South Africa. BSA: No. Twelve weeks are adequate.

Spain. It would be appropriate to adopt in a Recommendation a provision similar to the one in Article 1 of Recommendation No. 95.

Sri Lanka. Extending the maternity leave to 14 weeks is not suitable for developing countries.

Suriname. FAL: No. Extension must be based on medical grounds.

Switzerland. VSA: Yes. The Recommendation should refer to an extension of 14 to 16 weeks.

Thailand. Without pay.

Togo. To encourage Members to go beyond the minimum.

Trinidad and Tobago. Employers' Consultative Association of Trinidad and Tobago (ECA): No.

Tunisia. To the extent that the economy and social security system of the State permits. Strong protective measures could have negative consequences on women's employment.

Turkey. The wording of Question 5(2) is more appropriate.

TÜRK-IÔ: Yes. Sixteen weeks would be healthier.

United Kingdom. The Pregnant Workers Directive sets this as a reasonable period to ensure the health and safety of the mother and child.

United States. There is no valid medical or other basis for establishing a predetermined period of maternity leave.

AFL-CIO: Yes.

Uruguay. National Chamber of Commerce and Chamber of Manufacturers: No.

Viet Nam. It depends on the situation of the country. However, 14 weeks is a reasonable duration.

Zimbabwe. This provision should be included in the Convention.

There was broad support for inclusion of this provision in the Recommendation, a provision which corresponds to the maternity leave provision in Questions 5(1)-(2) above. Several replies noted that 14 weeks or more should be the minimum leave period. Report V(1) on Maternity protection at work illustrated that the vast majority of countries already provide for maternity leave of a duration of 12 weeks or more. However, the provision of leave beyond the 12-week period provided for in Point 7(1) to 14 weeks was seen as dependent upon many factors including the economic capacity of the Member state and the collective bargaining process. A minority of replies opposed to this provision cited a number of other hurdles, such as potential adverse consequences that a lengthy leave might have upon a woman's employment. Others suggested that the decision to provide for a maternity leave period of more than 12 weeks should be left to the discretion of the physician, for instance, where illness or other health-related complications arise. Furthermore, concerns were raised that any extension of maternity leave should not be associated with other types of leave, most notably those relating to adoption, parental or sick leave.

This provision has been included as Point 15(1) of the Proposed Conclusions, which includes the additional phrase "at least" thus leaving it open to Members to provide for a longer period if their national situation so permits. By way of comparison, 1(1) of Recommendation No. 95 referred to extending this period "to a total period of 14 weeks", but did not envisage providing a maternity leave beyond 14 weeks.

Qu. 15(1)

Should the prenatal portion of leave be extended by any period elapsing between the presumed date of confinement and the actual date of confinement, without any reduction in the duration of the woman's postnatal leave?

Total number of replies: 102.

Affirmative: 75. Angola, Argentina, Austria, Barbados, Belgium, Benin, Botswana, Bulgaria, Cambodia, Cameroon, Canada, Central African Republic, Chad, Chile, China, Colombia, Comoros, Congo, Costa Rica, Croatia, Cuba, Cyprus, Denmark, Ecuador, El Salvador, Estonia, Ethiopia, Finland, France, Germany, Ghana, Greece, Honduras, India, Indonesia, Islamic Republic of Iran, Jamaica, Japan, Jordan, Kenya, Republic of Korea, Kuwait, Latvia, Lithuania, Luxembourg, Mali, Mauritius, Mexico, Republic of Moldova, Mozambique, Netherlands, Nicaragua, Niger, Pakistan, Philippines, Poland, Portugal, Qatar, Romania, San Marino, Saudi Arabia, Seychelles, Slovakia, Sri Lanka, Suriname, Switzerland, Syrian Arab Republic, Thailand, Togo, Trinidad and Tobago, Ukraine, United Arab Emirates, Uruguay, Viet Nam, Zimbabwe.

Negative: 16. Australia, Bahrain, Belarus, Brazil, Czech Republic, Egypt, Guyana, Malaysia, Namibia, Papua New Guinea, Peru, Slovenia, South Africa, Tajikistan, Tunisia, Turkey.

Other: 11. Hungary, Lebanon, Morocco, Myanmar, New Zealand, Norway, Oman, Russian Federation, Spain, United Kingdom, United States.

Australia. If a woman chooses to take leave well before her actual confinement date, without medical necessity, it is her choice and the leave period should not be extended. If there- is medical necessity to the prenatal leave, she should be entitled to use her sick leave. See Question 7.

ACTU: Yes.

Azerbaijan. Azerbaijan Trade Unions Confederation: Yes, when this is necessary to protect the health of the mother and ensure healthy development of the foetus.

Bahrain. The period of leave set for confinement includes the prenatal and postnatal periods, so the overall leave does not require extension by the actual prenatal period, which however long, should be considered as sick leave.

Barbados. The woman should benefit from the full 12- or 14-week period of maternity leave if she so desires.

Belarus. It would be more appropriate to leave this to the national legislation of individual member States.

Belgium. Without reduction in the compulsory postnatal leave.

Brazil. CNC and CNI: Yes.

Cambodia. In general it is not possible to predict the exact date of birth.

Canada. This could prove to be a sticking point. Few jurisdictions provide for the extension of the prenatal portion of the leave.

Chile. This extension is absolutely necessary, given that prenatal and postnatal leave are not prescribed for the same medical purpose.

China. Recuperation following confinement cannot be shortened. The Recommendation should provide that the days of extension be recognized as prenatal leave.

Comoros. Postnatal leave should be compulsory and should not be shortened.

Congo. When confinement occurs later than foreseen by the gynaecologist or the midwife.

Cyprus. This is a very important stipulation. It should be transferred to the Convention.

Czech Republic. UZS „R: No. A maximum of six weeks' leave, unless the woman's state of health calls for its extension.

„MK OS: Yes. The expected date of birth can be ascertained relatively precisely using modern medical methods, so the length of time between the expected birth date and the actual date of birth is not usually very great. Extending maternity leave by this period is a negligible demand.

Denmark. Best handled at the national level.

Dominica. CSA: Yes.

DAWU: Yes.

DTU: No. Prenatal leave should be granted during a period calculated to elapse between the presumed and actual dates of confinement, whichever is longer.

WAWU: Yes.

Ecuador. UGTE: Yes. If a fixed prenatal period of leave is not established, the period should be extended.

Egypt. Egyptian Trade Union Federation. Yes.

El Salvador. Yes. In most cases, this is due to circumstances which cannot be anticipated in medical terms.

Ethiopia. CETU: Yes. Unless this has been taken with negligence.

Finland. The difference is likely to be small.

TT, LTK, Federation of Finnish Enterprises and KT: No.

France. CFDT: Yes.

Ghana. Upon the recommendation of the medical officer.

GEA: Yes. Prenatal and postnatal complications should determine the extension of the periods.

Honduras. COHEP: No. Provided that the prenatal leave period is clearly established.

Hungary. No objection in principle. The Convention must include a definition of the terms and justified cases for such measures.

India. AITUC: Yes, since the period elapsing between the presumed and the actual date of confinement is not subject to the worker's control.

Bharatiya Mazdoor Sangh: There will be very few cases where there is a vast difference between the presumed and the actual date of confinement.

National Front of Indian Trade Unions: No.

Indonesia. As mentioned in Recommendation No. 95.

APINDO: No. It is understood that there is a risk of moving the date of confinement.

Iraq. General Federation of Trade Unions: Yes.

Jamaica. JEF: Yes, as long as additional provisions are included to prevent abuse.

Jordan. Amman Chamber of Industry: Yes. The maternity leave should not exceed ten weeks in all before and after confinement.

Federation of Jordanian Chambers of Commerce: No.

Kenya. It may be left to the discretion of the employer to recover any prenatal portion of leave so extended.

Republic of Korea. The extension of leave should be flexibly applied to member States, provided that the maternity leave is basically ensured.

Korea Employers' Federation (KEF): No.

Lebanon. Such extension may lead to exceeding the maximum leave provided for in each State or in the Convention itself, particularly when there is a specified compulsory postnatal leave. The question arises as to whether this would involve any increase in financial and non-financial commitments, with regard to the prenatal portion of the leave.

Lithuania. Confederation of Lithuanian Entrepreneurs/Employers: As desired by the woman.

Malaysia. MAPA: Yes.

MEF: No. The prenatal leave is part of maternity leave and should be accounted for accordingly.

Mauritius. The period of compulsory leave after confinement should not be reduced to compensate for such additional leave.

Morocco. Upon agreement between the employer and the woman worker.

FCCIS: To be negotiated.

CDT: Yes.

Mozambique. See Question 7.

OTM: This should be the subject of consensus and adopted in collective labour agreements.

Myanmar. Existing service rules and regulations of Myanmar provide a 12-week period of maternity leave from the date of its commencement, or six weeks from the date of confinement, whichever is earlier.

Namibia. No automatic extension.

NEF: No. Consistency in granting maternity leave is important, be it prenatal or postnatal, to create uniformity.

NUNW: Yes.

Netherlands. FNV: This provision should be included in the Convention, not the Recommendation.

New Zealand. In New Zealand, maternity leave may begin on any of the following: the date of confinement; the date of assuming the care of a child being adopted; an earlier date which is within six weeks of the expected date of delivery; an agreed date; a date determined by a medical practitioner as being when the female needs to begin leave for medical reasons; or a date appointed by the employer due to the employee's inability to perform work safely and to an adequate standard.

NZEF: Some flexibility would seem to be desirable.

Norway. Generous national leave provisions ensure that the eventuality foreseen in this question is covered.

Oman. Medical reports that document the case are the determining factor in determining the period of leave before and after confinement.

Pakistan. On production of a medical certificate.

PNFTU: Yes.

Papua New Guinea. There should be a fixed prenatal and postnatal period.

Peru. CUT: Yes.

Philippines. There should be some leeway in the use of pre- and postnatal leave, but only within the time duration of the entire maternity leave.

Portugal. CIP: No. See Question 5(2).

CAP: No.

Romania. National Council of Private Small and Medium-sized Enterprises: No. The period during which leave is taken depends on medical advice regarding the pregnancy. Additional leave should be accorded in the case of illness, complications or risk of complications as indicated in Question 7.

Russian Federation. Under the Labour Code, maternity leave is reckoned as a total period and is granted to women irrespective of how many days have actually been taken before confinement.

Saudi Arabia. Any reduction in the duration of the postnatal leave could endanger the woman's health.

Slovakia. The length of period of leave after childbirth is the same for all women.

South Africa. Not unless for medical reasons.

BSA: No. Any further extension of leave will simply increase all the problems alluded to in the general observations.

Spain. This provision should be included in the Convention, which is where it is currently found.

CIG: Yes.

CCOO: Yes.

Sri Lanka. Only on the grounds of health care of a mother and a child.

Suriname. FAL: If based on medical grounds.

Tunisia. This extension should not increase the total duration of maternity leave.

Turkey. Such a provision will contradict the stipulations of Question 5(1).

TISK: Yes. If any divergence in the dates of presumed and actual confinement were to play a restrictive role in the prenatal and postnatal periods of leave provided, this would run counter to the minimum nature of the periods provided for maternity leave. Prenatal and postnatal periods require two different types of treatment and care. An additional period granted before confinement would not present any advantage for postnatal treatment and care.

TÜRK-IÔ: Yes.

United Kingdom. Where the period of maternity leave is insufficient to guarantee a woman time to recover from a birth which is later than expected, the leave and period of employment protection should be extended long enough to enable the mother to recover from the normal effects of giving birth.

United States. The Recommendation should be flexible to accommodate each worker's need in the context of national laws and regulations.

USCIB: No.

AFL-CIO: Yes. The recommended period of postnatal leave is designed to protect and promote the physical and emotional health and well-being of both mother and child. This period should not be diminished due to longer than expected prenatal leave.

Viet Nam. It is necessary to protect women's health.

This question essentially addresses a situation in which a woman's presumed delivery date has passed, thus making the prenatal portion of her leave overlap with the postnatal portion foreseen. Several replies acknowledged that the presumed date was not always accurate, resulting in the need for an extension of prenatal leave in those cases where confinement was late and consequently in a reduction in postnatal leave. Yet, several queries were raised, including whether the extension of prenatal leave should be viewed as sick leave rather than maternity leave, or whether such extensions would be necessary in practice given more modern techniques of predicting birth dates. Many replies conceded, however, that complications might arise, which in turn could give rise to the need for an extension of the prenatal leave period. The Office noted that the legislation of some countries already provides for such instances. Some replies considered that the regulation of this matter should therefore be left to national legislation. Others preferred that this matter be decided through the collective bargaining process.

This provision, which recalls Article 3(4) of Convention No. 103, has been included as Point 15(2) of the Proposed Conclusions, reflecting the majority view on the question. The wording has been altered slightly to clarify the intention which was to avoid any reduction in "any compulsory portion" of postnatal leave, rather than "in the duration of the woman's" postnatal leave. Although the suggestion was made that this provision be transferred to the Convention, the Office did not consider that there was sufficient support for such a transfer.
 

Qu. 15(2)

Should provision be made for an extension of the maternity leave referred to in Question 5 above in the case of: (a)  multiple births; (b)  single mothers; (c)  other cases?

Global answer to Paragraph 2, subparagraphs (a)-(c) :

Total number of replies: 5.

Affirmative. 1. Poland.

Negative: 2. Australia, Mexico.

Other: 2. Denmark, United States.

Subparagraph (a) :

Total number of replies: 95.

Affirmative: 68. Angola, Austria, Barbados, Belarus, Benin, Bulgaria, Cameroon, Central African Republic, Chad, Chile, China, Colombia, Comoros, Congo, Croatia, Cuba, Cyprus, Czech Republic, Ecuador, El Salvador, Estonia, Ethiopia, Finland, France, Germany, Ghana, Greece, Honduras, Islamic Republic of Iran, Italy, Jamaica, Japan, Republic of Korea, Kuwait, Latvia, Lithuania, Luxembourg, Mali, Mauritius, Republic of Moldova, Mozambique, Namibia, Nicaragua, Niger, Pakistan, Papua New Guinea, Philippines, Portugal, Romania, Russian Federation, San Marino, Seychelles, Slovakia, Slovenia, South Africa, Spain, Sri Lanka, Suriname, Tajikistan, Thailand, Trinidad and Tobago, Tunisia, Ukraine, United Arab Emirates, Uruguay, Venezuela, Viet Nam, Zimbabwe.

Negative: 20. Algeria, Bahrain, Belgium, Botswana, Brazil, Canada, Egypt, Guyana, Jordan, Kenya, Malaysia, Netherlands, Oman, Peru, Qatar, Switzerland, Syrian Arab Republic, Togo, Turkey, United Kingdom.

Other: 7. Costa Rica, Hungary, India, Lebanon, New Zealand, Norway, Saudi Arabia.

Subparagraph (b) :

Total number of replies: 92.

Affirmative: 42. Angola, Belarus, Bulgaria, China, Colombia, Comoros, Congo, Croatia, Cuba, Cyprus, Czech Republic, Ecuador, Ghana, Greece, India, Islamic Republic of Iran, Italy, Jamaica, Luxembourg, Mali, Mauritius, Republic of Moldova, Nicaragua, Niger, Papua New Guinea, Philippines, Romania, San Marino, Saudi Arabia, Seychelles, Slovakia, South Africa, Sri Lanka, Suriname, Syrian Arab Republic, Tajikistan, Thailand, Trinidad and Tobago, Tunisia, United Arab Emirates, Venezuela, Viet Nam.

Negative: 44. Algeria, Austria, Bahrain, Barbados, Belgium, Benin, Botswana, Brazil, Cameroon, Canada, Central African Republic, Chad, Chile, Egypt, Estonia, Ethiopia, France, Guyana, Honduras, Japan, Jordan, Kenya, Republic of Korea, Kuwait, Latvia, Lithuania, Malaysia, Mozambique, Namibia, Netherlands, Oman, Pakistan, Peru, Portugal, Qatar, Slovenia, Spain, Switzerland, Togo, Turkey, Ukraine, United Kingdom, United States, Zimbabwe.

Other: 6. Costa Rica, Finland, Hungary, Lebanon, New Zealand, Norway.

Subparagraph (c) :

Total number of replies: 71.

Affirmative: 41. Austria, Barbados, Belarus, Cameroon, Colombia, Comoros, Congo, Croatia, Czech Republic, Ecuador, El Salvador, Estonia, Finland, Germany, Ghana, India, Italy, Jamaica, Kuwait, Lithuania, Luxembourg, Mali, Mauritius, Morocco, Mozambique, Nicaragua, Niger, Pakistan, Papua New Guinea, Portugal, Romania, Slovakia, Slovenia, South Africa, Sri Lanka, Suriname, Trinidad and Tobago, Ukraine, Venezuela, Viet Nam, Zimbabwe.

Negative: 23. Bahrain, Belgium, Botswana, Brazil, Bulgaria, Chile, Ethiopia, France, Honduras, Jordan, Kenya, Malaysia, Namibia, Netherlands, Peru, Philippines, Qatar, Spain, Switzerland, Syrian Arab Republic, Thailand, Turkey, United Kingdom.

Other: 7. Costa Rica, Cuba, Cyprus, Lebanon, New Zealand, Norway, Togo.

Argentina. CGT: Yes to (a)-(c). (a) Leave should be increased in proportion to the actual number of births. (b) Give family leave rather than maternity leave. (c) A child born with congenital conditions.

Australia. Rather than identify specific categories of mothers, provide the option of extending leave to all women as required. Extension would then be negotiable on a case-by-case basis. The Recommendation could set down examples of reasons for negotiating an extension, which might include these grounds and those mentioned in Question 16(2). (c) Children with disabilities or serious illness.

ACTU: Yes to (a)-(c). (c) A child born with a disability or serious illness.

Austria. (c) Premature delivery or Caesarean section.

BAK: Yes to (a) and (c) ; no to (b). (b) A special provision for single mothers could lead to discrimination.

ÖGB: Yes to (a)-(c).

Azerbaijan. Azerbaijan Trade Unions Confederation: Yes to (a)-(c).

Bahrain. (b) There is no difference between single or married women's confinement.

Barbados. (a) Multiple births are more taxing physically. (b) No special provision needed because of marital status. (c) A child born with special needs. Should be included in the Convention.

Barbados Workers' Union (BWU): No to (c).

Belarus. (c) Illness or complications arising out of birth.

Belgium. (b) If such an extension serves the goals of maternity protection, why not also provide leave for the father, for example, in the case of the mother's death? (c) Might be better placed in the framework of balancing work and family responsibilities. The text mentions "an extension of maternity leave"; consequently the period of extension should be treated in the same manner as maternity leave.

CNT: (a) The inclusion of such a provision in the instrument is worth questioning. The circumstances foreseen here are among a number of situations which might require particular attention. The solution to such problems might reside in a number of measures, only one of which might be an extension of leave. Other measures, such as parental leave which would allow fathers to be involved, might offer flexible solutions.

Benin. The length of extension should be set by national legislation.

COSI: Yes to (a) and (b).

Botswana. (a)-(b) Defeats the purpose for which maternity leave is granted.

Brazil. CNC and CNI: No to (a)-(c).

CNF: Yes to (a)-(c). (a) With the birth of three or more children. (b) Extra remuneration should also be provided. (c) Children with illnesses which require greater mobility on the part of mothers in the form of visits to hospitals, psychiatric centres, etc.

Cameroon. (a) If necessary. (c) Illness of mother or child.

Canada. (a) National legislation does not provide for an extension of maternity leave for multiple births. In many jurisdictions, however, it is possible to obtain an extension of maternity leave for medical reasons.

CEC: No to (a)-(c).

CLC: Yes to (a)-(c). (c) Birth requiring medical/surgical care for child or mother.

Central African Republic. (b) Except in the case of her husband's death, internment or hospitalization, or if the marriage was dissolved before the birth.

Chile. (a) If medical reasons so justify, an extension both of the prenatal and postnatal maternity leave should be considered for multiple pregnancy. (b) As proposed, it alone does not justify an extension.

CPC: No to (a)-(c).

Colombia. (a) If the individual circumstances of each member State permit.

Comoros. (b) Upon the request of the woman and with the employer's agreement. (c) In the event of the husband's death.

Congo. (c) Premature birth, medically certified threat to the health of the mother.

Costa Rica. (a)-(c) These cases go beyond the minimum guarantees envisaged by the Convention and should be left to national legislation in individual member States.

Croatia. (c) Illness of the child.

Croatian Association of Employers: The extension of maternity leave should be provided, but without stating special cases. (b) No. If specific categories of women are mentioned, single mothers should be excluded.

KNSH, SSSH, HUS, MATICA and KHSJSN: Yes to (a)-(c).

Cuba. (b) Social welfare programmes for single mothers should be developed, including all necessary benefits in money, in services and in kind, provided on a flexible basis adapted to particular circumstances. (c) To enable personal care of her child up to a certain age, either with or without financial benefits.

Cyprus. (c) Where working conditions are prejudicial to the health of the mother or when the child is seriously ill.

PEO: Yes to (a)-(c). (c) A newborn child with special health problems or disabilities.

Czech Republic. (c) The birth of a child requiring special care.

UZS „R: (a)-(c) In general, no. To be left to national legislation.

Denmark. Equal Status Council. It depends on the individual situation.

DA: No.

LO: Special rules should apply in case of abnormal birth or the need for special care for parents or child.

Dominica. CSA: Yes to (a)-(c). (c) Physically handicapped, premature births.

DAWU: Yes to (a) and (c). (c) Complications with pregnancy and after delivery (such as hypertension and diabetes).

DTU: Yes to (a) and (c) ; no to (b). (c) Extension should be granted only in the best interest of the health and safety of mother and child. Single mothers are no exception.

WAWU: Yes to (a)-(c). (b) For very young mothers particularly. (c) Complications.

Ecuador. (b) If no appropriate care facility has been found or if no one else is available to give assistance. (c) Risk to the lives or physical and mental health of the mother or child.

CONAMU: Yes to (a)-(c). (a)-(b) Extension should be compulsory. (c) Health problems and/or special needs of mother or child.

UGTE: Yes to (a)-(c). (c) Children born with disabilities or unusual illnesses.

Egypt. Egyptian Trade Union Federation: No. Such extension would be a reason for employers not to recruit women.

El Salvador. (c) Prolonged labour, forceps births or any other maternity pathology.

Estonia. (a) On the basis of mother's and child's health. (b) The term "woman" includes both married and single women. (c) Complications or illness.

Estonian Association of Trade Unions: Yes to (a)-(c). (c) Complications.

Ethiopia. CETU: Yes to (a) and (c) ; no to (b). (c) Abortions.

Finland. (b) The position on this question depends on the whole context in which parental leaves are generally arranged. (c) Child-care leave for adopted children.

TT, LTK, Federation of Finnish Employers and KT: No to (a)-(c).

SAK, STTK and AKAVA: Yes to (c). See Question 16(2).

France. CNPF: Yes to (a) ; no to (b)-(c).

CFDT: Yes to (a)-(c). (c) Illness related to pregnancy and childbirth.

CFE-CGC: Yes to (a)-(c). (c) Child born with a handicap or illness, or high-risk delivery.

CFTC: Yes to (a) and (c) ; no to (b). (b) Would it not discriminate in favour of women who are cohabiting? (c) The child's serious illness or handicap. If there are other children in the family.

CGT-FO: Yes to (a)-(c). (c) Illness of the child.

Germany. Such a need may arise, although the prohibition of employment during an extended period of maternity leave can cause problems for a mother with inadequate financial resources during the maternity leave. Cumulative extension by 15(2)(a), 15(2)(b) and 15(2)(c) is not in the mother's interests. (c) Premature births. All or part of the usual period of prenatal leave is lost owing to the premature birth. Compensation should be provided in the form of a commensurate extension of postnatal leave. The total period of prenatal plus postnatal leave should not be longer than in the case of multiple births.

BDA: Yes to (a) ; no to (b)-(c).

DGB: Yes to (a)-(c). (c) Illness of mother or child.

DAG: Yes to (a)-(c). (c) Premature births and illness of mother or child.

Ghana. (a) To ensure the survival of the children. (c) A child born with a disability.

NCWD: Yes to (a)-(c). (c) Pregnancy-related illnesses, premature births. It is important to differentiate between pregnancy-related and other illnesses.

GEA: Yes to (a)-(c). (b) But on a case-by-case basis. (c) Sickness.

TUC: Yes to (a) and (c) ; no to (b). (c) Complications during childbirth, sickness of child or hospitalization.

Honduras. COHEP: Yes to (a), provided that the leave does not exceed 14 weeks. No to (b).

Hungary. (a)-(b) Should depend on the mother's choice.

India. (a) Such extension may be considered. (c) On medical advice.

AITUC: Yes to (a)-(c).

Bharatiya Mazdoor Sangh: Yes to (a)-(b) ; no to (c). (a) Compulsory leave should be extended by six weeks. (b) Compulsory leave should be extended by two weeks.

Centre of Indian Trade Unions: Yes to (a)-(b).

HMS: Yes to (a)-(c). (c) Where maternity is restricted to two children, in case of death of a child or children, maternity leave should be allowed till two surviving children.

INTUC: Yes to (a)-(c). (c) Complications before or after delivery.

National Front of Indian Trade Unions: No to (a)-(b). (c) Should be limited to two pregnancies in order to fight the population explosion in under-developed countries. Benefits should be related to productivity.

Indonesia. APINDO: No to (a)-(c).

Iraq. General Federation of Trade Unions: Yes to (a) and (c) ; no to (b). (c) Unusual births.

Italy. Extension of maternity leave should be provided in specific cases (premature birth or birth of a child with particular health problems, multiple births, single-parent families), with the possibility of optional leave in the event of the child's hospitalization.

CONFINDUSTRIA: (a)-(c) Should be handled through collective bargaining or national legislation.

Jamaica. (c) Stillbirths and Caesarean births.

JEF: Yes to (a) and (c) ; no to (b).

Japan. (b) Extension because a woman is single is out of keeping with the medical reasons for maternity leave.

NIKKEIREN: (a) No objection to extension of prenatal leave. (b) Extension of leave due to family conditions must be considered separately from maternity protection.

JTUC-RENGO: Yes to (a)-(c). (c) If needed for full recovery after childbirth.

Jordan. Amman Chamber of Industry: Yes to (a) ; no to (b)-(c).

Federation of Jordanian Chambers of Commerce: No to (a)-(c).

General Federation of Jordanian Trade Unions: Yes to (a) ; no to (b)-(c).

Republic of Korea. (b) Extension of maternity leave for single mothers would make it harder for them to get a job, instead of protecting them.

Kuwait. (a) In the case of more than two births. (c) The birth of an unhealthy or disabled child with congenital malformations.

Lebanon. (a) No provision need be made. Recourse to such measures may be made for State-specific demographic considerations. (c) Illness arising directly from confinement if a woman has exhausted her ordinary sick leave. Such a matter should be left to national legislation. Questions remain concerning the implications of such measures on cash benefits and medical entitlements.

Lithuania. (c) Complications at birth.

Confederation of Lithuanian Entrepreneurs/Employers: Yes to (a)-(b).

Centre of Lithuanian Trade Unions: Yes to (a)-(b).

Lithuanian Labour Federation: Yes to (a)-(b).

Lithuanian Workers' Union: Yes to (a)-(c). (c) Extreme emotional trauma during confinement and pregnancy.

Unification of Lithuanian Trade Unions: Yes to (a)-(c). (c) The mother's disability or chronic illness.

Luxembourg. (c) Premature birth.

Malaysia. MAPA: No to (a)-(c). Maternity leave is granted based on confinement.

MEF: No to (a)-(c). (a) The confinement occurred at the same time. It is immaterial whether it is a single or multiple birth. (b) Single mothers should not be given any extra privilege based purely on their single status.

Mali. (c) The child's illness. Special events, such as circumcision.

Mauritius. (a) The period of extension should be left to the discretion of the member State. (c) Illness arising from childbirth.

MEF: No to (a)-(c).

Mexico. These situations should be regulated through collective bargaining.

Morocco. (c) Medically certified complications.

FCCIS: (a)-(b) To be negotiated.

CDT: Yes to (c). (c) Illness linked to pregnancy.

Mozambique. (b) Other alternatives exist for guaranteeing the care of the child when the mother is working. (c) Illness of mother or child after maternity leave.

OTM: Yes to (a)-(c). (c) Young persons without experience of caring for infants.

Namibia. NEF: Yes to (a) ; no to (b)-(c). (a) Cash benefits should be borne by other state means, e.g. social welfare if applicable. (b) Other social welfare mechanisms should cater for this specific need.

NUNW: Yes to (a)-(c). (c) Caesarian birth.

Netherlands. (a) Multiple births do not necessarily require a longer period of recovery for the mother. If longer leave is needed, it should be granted on account of illness. (b) The period required for the recovery of a single mother will be longer than for a married or cohabiting mother.

New Zealand. (a)-(b) In New Zealand, the provision of extended leave of up to 52 weeks is deemed sufficient for the situation of multiple births. Such leave is available to all employees, irrespective of their conjugal status. (c) There is no need to provide a list of special circumstances. General phrasing should cover all cases where a parent may need leave from employment to care for a new child, including the case of adoption.

Nicaragua. (b) Prefer the wording "heads of families" or "heads of households".

Niger. (c) Complications during delivery which require medical follow-up.

Norway. (a)-(b) Under national legislation, the allowance period, and hence the leave of absence, may be extended in the event of multiple births or for a person with sole responsibility for caring for a child. (c) Under national legislation, maternity leave may be extended to the extent that the person in question is entitled to maternity allowance from national insurance.

Oman. (b) There is no cause for discrimination in such cases.

Pakistan. (a) and (c) Maternity leave may be extended to recover health. (b) In accordance with the people's religious and social obligations.

PNFTU: Yes to (a)-(c).

Papua New Guinea. (a) Depending on circumstances. (c) Purely on medical grounds arising from complications during childbirth.

Peru. CUT: Yes to (a) ; no to (b)-(c). (b) Family responsibilities should be covered through parental leave. (c) Other cases could be covered through sick leave.

Philippines. (a) Any decision to extend maternity leave in case of multiple births should be in consultation with employers and workers. (c) Other cases may fall under other health-care regulations.

Poland. Current legislation provides for the extension of the maternity leave in the case of multiple births and subsequent confinements. Extension of maternity leave for single mothers would require amendment of the Labour Code.

KPP: Yes to (a)-(b).

OPZZ: Yes to (a)-(c).

Portugal. (c) Birth of children with major handicaps.

CIP: No to (a)-(c).

CAP: Yes to (a) ; no to (b).

CGTP: Yes to (a)-(b).

UGT: (c) The birth of children with disabilities.

Romania. (c) Handicapped women, women in rural areas where medical exams are more difficult, women working in economic sectors wherein the risk for mother and foetus is increased.

National Council of Private Small and Medium-sized Industries: No to (a)-(c). (a) Supplementary leave might be accorded for health reasons. (b) Supplementary leave for child care need not be linked to maternity leave. (c) Situations related to the health of mother and child would be considered under medical leave.

CSDR: No to (a)-(c).

Saudi Arabia. Depending on national legislation.

Slovakia. (c) The care of a disabled child.

Slovenia. (c) Premature birth; severe disability of child.

South Africa. (c) Pregnancy with complications; women required to perform heavy work.

BSA: No to (a)-(b). See the general observations.

Spain. (b) Does term "single" include cases in which a father does not help at all, or in which a grandmother does help, although there is no father figure?

CIG: Yes to (a)-(b). (a) The extension of the leave should vary according to the number of children born.

CCOO: Yes to (a)-(c).

Suriname. ASFA: Yes to (a) and (c) ; no to (b). (c) Abandoned mother or poor health of the child.

FAL: Yes to (a) ; no to (b)-(c).

Switzerland. VSA: Yes.

Syrian Arab Republic. (a) Normal sick leave is available. (b) This right arises from- the Convention on the Rights of the Child, though the law recognizes legitimate relations (marriage).

Togo. (c) As ordered by a medical doctor.

Trinidad and Tobago. (b) On grounds to be clearly specified.

ECA: Yes to (a) and (c) ; no to (b).

NATUC: Yes to (a)-(b). (a) There must be the flexibility of additional leave, since the responsibility and workload heightens.

Tunisia. (a)-(b) The maximum extension should be specified in national legislation.

Turkey. (a)-(c) Leave without pay may be possible.

TISK: No to (a)-(c). (c) The Convention defines minimum periods of maternity leave. In case of need, additional periods can be granted. It would be undesirable both in theory and practice to include a separate provision in the Recommendation for every exceptional case.

TÜRK-IÔ: Yes to (a)-(b). (a)-(c) Must be dealt with through Convention No. 156.

Ukraine. (b) It is difficult to determine the objectivity of this social criterion. (c) Childbirth complications.

United Kingdom. Provision should be made for minimum standards in normal circumstances. Additional provision for other circumstances should be left to national law and practice.

United States. No distinction should be made on the basis of marital status. Leave could be extended in extraordinary cases based on the facts and circumstances.

USCIB: No to (a)-(c).

AFL-CIO: Yes to (c). (a)-(b) Differentiations should not be made based solely on numbers of children or on marital status. Provisions should be made for extension of maternity leave in cases of demonstrated hardship or need due, for example, to multiple births or single-parent status. (c) Special circumstances, such as illness of the father or other family members or special physical or emotional needs of the newborns.

Uruguay. National Chamber of Commerce and Chamber of Manufacturers: No to (a)-(c).

Venezuela. (c) Women suffering from illness or physical, psychological or professional handicap.

CTV: (a) There should be no such provisions for normal births.

Viet Nam. (c) The poor health of the mother or child.

Zimbabwe. (a) This section should also be included in the Convention. (c) Birth of a disabled child, pre-term birth, caesarian birth, or delivery complications which require special care for either mother or child.

ZCTU: Yes to (a) and (c) ; no to (b). (c) Surgical delivery.

This question proposed a new provision for an extension of maternity leave in the case of multiple births, single mothers, or other cases to be suggested in the replies. In the case of multiple births, a majority of governments, as well as employers' and workers' organizations, supported the provision of an extension of leave. The replies indicated that a number of countries already provide for limited extensions to the maternity leave period, referred to in Point 7(1) above, within national legislation. The rationale for such leave, as mentioned in many of the replies, relates to the possibility that the health of the mother and children may require more time for recuperation, and to the extra effort required to care for the children. A significant number of governments, as well as a few employers' organizations, opposed this provision, and considered that where additional recovery time was necessary, such leave should be treated as an extension of leave for medical reasons. In view of the majority support, this provision was included as Point 15(3) of the Proposed Conclusions.

Insufficient support was received with regard to an extension of maternity leave in the case of single mothers, and thus this provision was not included. Paragraph (c) of this Question solicited suggestions regarding other cases in which maternity leave might be extended. The comments identified a variety of "other cases," but the Office did not find strong support for any one of these. The Office notes that many comments related to the health of the mother and might thus be provided for in Point 8(2) of the Proposed Conclusions. Many other suggestions related to the health and care of the child. One union asserted that these matters should be addressed within the framework of the Workers with Family Responsibilities Convention, 1981(No. 156).
 

Qu. 16(1)

To the extent possible, should the woman be entitled to choose freely the time at which she takes any non-compulsory portion of her maternity leave before or after childbirth?

Total number of replies: 101.

Affirmative: 70. Algeria, Angola, Argentina, Australia, Barbados, Belarus, Belgium, Botswana, Cameroon, Canada, Chile, China, Colombia, Comoros, Cuba, Cyprus, Ecuador, Egypt, El Salvador, Estonia, Ethiopia, Guyana, Honduras, Hungary, India, Indonesia, Islamic Republic of Iran, Italy, Jamaica, Kenya, Republic of Korea, Kuwait, Latvia, Mali, Mauritius, Republic of Moldova, Morocco, Mozambique, Namibia, Netherlands, New Zealand, Niger, Oman, Pakistan, Papua New Guinea, Peru, Philippines, Poland, Portugal, Qatar, Romania, San Marino, Seychelles, Slovakia, Slovenia, South Africa, Spain, Sri Lanka, Suriname, Thailand, Trinidad and Tobago, Tunisia, Turkey, Ukraine, United Arab Emirates, United Kingdom, United States, Uruguay, Venezuela, Viet Nam.

Negative: 21. Austria, Bahrain, Bulgaria, Central African Republic, Costa Rica, Croatia, Czech Republic, Finland, France, Germany, Ghana, Greece, Japan, Jordan, Lithuania, Malaysia, Switzerland, Syrian Arab Republic, Tajikistan, Togo, Zimbabwe.

Other: 10. Benin, Chad, Congo, Denmark, Lebanon, Luxembourg, Mexico, Nicaragua, Norway, Saudi Arabia.

Algeria. If taken immediately following childbirth.

Argentina. The woman should be able to choose in the light of medical advice.

CGT: The date on which the leave begins should be decided by the mother.

Australia. All leave should be non-compulsory and the start and finish times be determined by the mother as she deems appropriate. Medical certification endorsing her health could be requested if she chooses to return to work within six weeks of the birth.

Austria. Even the time of the non-compulsory maternity leave should be laid down.

ÖGB: Yes.

Azerbaijan. Azerbaijan Trade Unions Confederation: No. The purpose of maternity leave is to protect the health of the mother and her child.

Bahrain. The non-compulsory portion of maternity leave must be taken immediately after the compulsory portion of the leave.

Barbados. She should be free to choose to reduce the prenatal leave and extend the postnatal leave subject to her physical and mental condition.

Belgium. This choice is the woman's responsibility. "To the extent possible" could be deleted, since this is a Recommendation.

CNT: Maternity leave should not be split. It would be useful to include the principle of the unity of maternity leave in the instrument.

Benin. The idea of a non-compulsory portion of maternity leave should be made explicit.

COSI: Yes.

Botswana. To allow for flexibility.

Brazil. CNC and CNI: No.

CNF: No. The provisions of the Convention are sufficient as they stand. Any extension of the period should always be decided by a physician.

Central African Republic. This could negatively affect activities within the enterprise.

Chad. This provision does not exist in Chad.

Chile. Leave is prescribed by a medical practitioner and should not be altered at the patient's convenience. It is designed to protect health and to favour care during pregnancy and for the newborn. However, anything exceeding each country's compulsory minimum could be distributed on a voluntary basis.

China. Absolutely free choice is not necessarily consistent with the requirements of medical science. Under the guidance of her doctor, the woman may make her choice.

Colombia. Although initially at the discretion of the mother, the limits are defined by legislation in accordance with medical knowledge about pregnancy and how it is affected by work.

Congo. She must conform to health regulations in order to preserve her state of health.

Cuba. As long as it is not contrary to medical opinion and she does not perform work prejudicial to her health.

Czech Republic. UZS „R: A maximum of six weeks before the birth of the child.

„MK OS: Her personal right to decide should not be restricted.

Denmark. This matter should be left to the national regulations of each member State.

Equal Status Council: Yes. In cooperation with the individual woman's employer.

Dominica. CSA: No.

DAWU: Yes. In consultation with medical expert.

DTU: Yes.

WAWU: Yes.

Ecuador. If she is entitled to leave, she may choose by agreement between the parties.

UGTE: No. The whole period of leave should be compulsory

Egypt. On condition that a minimum amount of days is fixed for the authorized leave after confinement, in order to ensure the necessary health care for the mother.

Federation of Egyptian Industries: No.

Estonia. Choice should be possible due to health considerations and on the basis of medical recommendation.

Ethiopia. The woman should have the right to decide whether to postpone a portion of maternity leave for other unexpected problems requiring care for herself and her child.

Finland. Priority should be given to the needs of the mother, but in understanding with the employer. In countries with parental leave, there is usually no need for a non-compulsory portion of maternity leave. Provisions concerning the minimum length of a part of the leave are necessary. A reasonable period of notice should always be observed.

France. CFDT: Yes.

CFE-CGC: Some doubt as to whether a woman is always in a position to make such a choice freely.

CFTC: Yes. Allows freedom and the ability to adapt the law to the particular situation of the woman.

CGT-FO: Yes.

Germany. Maternity leave is absolutely essential for the health of the mother and baby and should therefore not be a matter of choice. This does not apply to the parental leave that follows maternity leave.

DAG: Yes. Such a non-compulsory period of leave would correspond to the German parental leave.

Ghana. National laws should state clearly a specific time a pregnant woman is entitled to a leave.

NCWD: Yes.

TUC: Yes.

Honduras. COHEP: Yes.

India. A pregnant woman is the best judge as to when the non-compulsory portion of maternity leave is to be taken.

AITUC: Yes. Women should be allowed to choose when they would like to take maternity leave.

Bharatiya Mazdoor Sangh: Yes. The use of prenatal leave depends upon various factors, e.g. health constraints on the job, so the pregnant mother is the best judge as to when non-compulsory leave is taken.

National Front of Indian Trade Unions: No. This will affect employers' interests and productivity.

Indonesia. As long as it concerns the health of the mother and her child.

APINDO: No. This might disrupt work schedules.

Islamic Republic of Iran. Upon certification by the physician.

Iraq. General Federation of Trade Unions: Yes.

Italy. CONFINDUSTRIA: Should be handled through collective bargaining or national legislation.

Jamaica. JEF: No.

Japan. Maternity leave, including the non-compulsory portion, should be provided from a medical viewpoint for maternity protection. It would be inconsistent with this viewpoint if the time to take the non-compulsory portion could be chosen freely by the woman.

NIKKEIREN: Yes. Under national law, prenatal leave is non-compulsory. The law also provides for a non-compulsory portion of postnatal leave where work is permitted on condition that the duties are recognized by a doctor as not adversely affecting the woman. If such provisions are not considered to prejudice the woman's free choice, there is no problem.

JTUC-RENGO: From the medical viewpoint, prenatal leave should not be shortened for the purpose of prolonging postnatal leave. If the childbirth occurs early, the remainder of the six weeks leave may be taken after childbirth.

Jordan. Amman Chamber of Industry: Maternity leave should not be divided and should be taken at the time prescribed.

Federation of Jordanian Chambers of Commerce: Yes.

General Federation of Jordanian Trade Unions: Yes.

Republic of Korea. The woman should be entitled to choose freely, taking into account her own conditions, including physical and mental health.

Lebanon. A woman's right to choose should remain within limits and should not create organizational problems at work. Freedom of choice should be based on a medical report certifying that she can work before or after childbirth without prejudice to her health or that of her child.

Lithuania. For the sake of the mother's and child's health, maternity leave should be taken at the proper time without the right to choose.

Confederation of Lithuanian Entrepreneurs/Employers: Yes.

Centre of Lithuanian Trade Unions: Yes.

Lithuanian Workers' Union: Yes.

Unification of Lithuanian Trade Unions: Yes.

Luxembourg. Luxembourg legislation strictly prohibits pregnant women from working during the eight weeks preceding the expected date of childbirth.

Malaysia. MAPA: No. This would be too liberal and could cause havoc to labour requirements and working arrangements.

MEF: No. Her medical condition may make it compulsory for the female employee to take maternity leave before childbirth.

Mauritius. MEF: No.

Mexico. It is not clear what would constitute a non-compulsory period. The 12 weeks mentioned in Question 5(1) are presumed to be compulsory.

Morocco. In agreement with the employer.

FCCIS: No.

Mozambique. The mother should return to work when she is sure that the child will not be exposed to any risks, and in the case of sickness should present a medical certificate.

OTM: After the end of the compulsory maternity leave, a woman should enjoy all her rights in the enterprise.

Namibia. Provided it is recommended by a registered medical doctor/practitioner.

NEF: Yes. In agreement with the employer.

Netherlands. In view of the importance of the physical recovery of the mother, the aim should be for limited flexibility.

FNV: Guarantees for a truly free choice for the woman are necessary. Too often the employer tries to influence women in their choice.

New Zealand. See 15(1). A flexible approach where the employee and employer can determine the date of leave beginning allows the parties to individually ensure that their parental leave entitlement is taken in a manner that most adequately reflects their individual circumstances. Any approach that requires that an employee must take a mandated period of prenatal leave is inconsistent with the notion of maximum flexibility in the employment relationship.

NZEF: How leave is to be taken is a matter for the parents to decide for themselves. Parental leave in this country is given to protect employment, not to ensure that women have a compulsory break from work.

Nicaragua. In accordance with her medical doctor.

Norway. Norwegian legislation provides for this entitlement, provided that notification requirements are met.

Oman. The woman is best able to decide.

Pakistan. A woman is a better judge of her medical condition.

Papua New Guinea. In compliance with national laws and regulations.

Peru. CUT: With a medical certificate stating that postponement will not be prejudicial to the health of mother or child.

Portugal. CIP: Provided that the leave is granted for a consecutive period of time and that such an option takes account of the normal operation of the enterprise.

Qatar. Within determined limits particularly as concerns the extent of time period in which such leave could be taken.

Romania. The right of the women to pre- and postnatal maternity leave should be unconditional. The woman alone should decide on the number of days of leave that she intends to use before or after the delivery.

Saudi Arabia. Depending on national legislation.

South Africa. BSA: The word "entitled" is too strong. The timing of the leave should be decided in consultation with the employer.

Spain. This is in keeping with our regulations and those of the European Union.

Sri Lanka. Leave requirements depends on the health conditions of the woman and the child.

Suriname. FAL: No. It must be in consultation with the medical doctor.

Switzerland. VSA: Yes.

Syrian Arab Republic. Non-compulsory maternity leave can be paid or unpaid; it must immediately follow the period of compulsory leave to safeguard the health of both mother and infant.

Togo. Maternity leave is a right and a duty. It must be taken to ensure the health of mother and child.

Trinidad and Tobago. NATUC: Yes. This should be done in consultation with the woman's doctor.

Turkey. TISK: No. Distinctions between compulsory and non-compulsory maternity leave could prevent the full achievement of the objective of protection laid down in the Convention. Granting the woman the right to choose when to take any non-compulsory portion of her maternity leave would infringe upon the medical nature of confinement.

TÜRK-IÔ: It should be flexible.

United Kingdom. Yes, in principle. However, national law should be free to set the earliest and latest a woman can choose to start maternity leave.

United States. USCIB: Yes. The question highlights why States should not dictate the amount or timing of maternity leave.

AFL-CIO: Yes.

Venezuela. If the leave is supported by a medical or psychological certificate.

CTV: A period of pre- and postnatal leave should always be compulsory. The length of the leave should be specified by the woman's doctor. However, a woman should be entitled to use her holiday leave before the birth. This is a matter for negotiation with the employer or the relevant collective agreement. Alternatively, a provision to this effect could be included in the Recommendation.

Viet Nam. With the agreement of the employer.

Zimbabwe. It should be after childbirth.

ZCTU: Yes. The woman knows best when she wants to stop working and go on leave.

Although a majority of governments supported this provision in principle, over one-third submitted qualified replies. Many affirmed the desirability of increasing a woman's freedom of choice. However, several governments, as well as a number of employers' and workers' organizations, indicated conditions which should apply to such a provision. Several suggested limits to this right, whether set by national legislation, based on a medical certificate or reached through agreement between the woman and her employer. Some replies concluded that the fundamental purpose of maternity leave – the preservation of the woman's health and that of her child – would not be achieved if women could freely choose the time at which any non-compulsory leave could be taken. Several others affirmed, on the contrary, that the woman was in the best position to judge her health needs in consultation with her doctor.

A number of replies pointed out specific characteristics of their national legislation that were inconsistent with this provision. For example, national legislation of some countries provide that non-compulsory leave may only be taken immediately following the compulsory period, or that there may be maximum and minimum time periods before and after childbirth during which a woman might begin and end her maternity leave.

According to some replies, in countries where maternity leave was part of an overall period of parental leave, the non-compulsory part of the leave might be categorized as parental leave. One government noted that if non-compulsory maternity leave were synonymous with parental leave, then there would be no objection to this provision; however, if it were synonymous with maternity leave, then it could not support this provision because all maternity leave was compulsory under its national legislation.

Taking into account that a number of replies considered that this matter might be addressed through national legislation, collective agreements, or otherwise, the wording of this provision has been altered slightly to read "measures should be- taken to ensure". This new provision has been included as Point 15(4) of the Proposed Conclusions.
 

Qu. 16(2)

In the event that her child is hospitalized after the expiry of any compulsory postnatal leave, as referred to in question 6 above, should a woman be entitled to postpone any remaining period of maternity leave until the child leaves hospital?

Total number of replies: 98.

Affirmative: 61. Angola, Australia, Belarus, Belgium, Brazil, Cameroon, Canada, China, Colombia, Comoros, Congo, Croatia, Cuba, Cyprus, Czech Republic, Denmark, Ecuador, El Salvador, Estonia, Ethiopia, Finland, France, Ghana, Honduras, Hungary, India, Indonesia, Islamic Republic of Iran, Italy, Jamaica, Jordan, Kenya, Kuwait, Latvia, Lebanon, Luxembourg, Mali, Mauritius, Republic of Moldova, Mozambique, Nicaragua, Niger, Oman, Pakistan, Papua New Guinea, Philippines, Poland, Portugal, San Marino, Slovakia, Slovenia, Sri Lanka, Suriname, Thailand, Trinidad and Tobago, Tunisia, Turkey, Ukraine, United Arab Emirates, United States, Venezuela.

Negative: 29. Algeria, Austria, Bahrain, Barbados, Benin, Botswana, Chad, Chile, Germany, Greece, Guyana, Japan, Republic of Korea, Lithuania, Malaysia, Namibia, Netherlands, Peru, Qatar, Seychelles, South Africa, Spain, Switzerland, Syrian Arab Republic, Tajikistan, Togo, United Kingdom, Viet Nam, Zimbabwe.

Other: 8. Bulgaria, Costa Rica, Mexico, Morocco, New Zealand, Norway, Romania, Saudi Arabia.

Angola. Social legislation must be fairly flexible with a view to meeting the needs of the concerned parties.

Argentina. CGT: Yes. Legislation should provide for leave to care for family members.

Australia. Assuming that the intent is to protect the mother's health and that to recover from childbirth the mother needs a certain period of leave, then postponing it will put the woman at an unnecessary and unfair risk. If the purpose of the leave is child care, then the leave is more appropriately addressed under Convention No. 156.

ACTU: Yes.

Austria. BAK: Yes.

ÖGB: Yes.

Azerbaijan. Azerbaijan Trade Unions Confederation: The wording of the question is not clear.

Bahrain. Maternity leave is the mother's. She cannot request postponement of this leave, and neither her schedule nor her work may be altered by her child's admission or release from hospital.

Belgium. Hospitalization could occur for many reasons unrelated to birth. Unless the link with maternity leave is maintained, it would be leave of a different type.

CNT: Other solutions, such as parental leave, might also be envisaged.

Benin. The doctor should decide whether the health of the child requires the mother's presence.

COSI: Yes.

Botswana. The woman should exhaust the remaining period of maternity leave and then apply for annual or unpaid leave.

Brazil. In accordance with the legislation of the member State.

CNC and CNI: No.

CNF: Yes. If not, time off could be granted during the working day.

Bulgaria. Ministry of Labour and Social Policy: Yes. Ministry of Health, and Ministry of Justice and European Legal Integration: No.

Canada. Certain jurisdictions do not provide for such interruption of maternity leave and one province does not have parental leave. The latter may pose a problem with respect to this subsection.

CEC: No position on this point at this stage of the discussion.

CLC: Yes, although optimally, there should be additional leave when the child leaves the hospital.

Chile. Leave to care for a sick child serves a purpose different from that of postnatal leave, so it appears neither justified nor reasonable to merge them. Leave to care for a sick child should be granted to either parent.

CPC: Yes.

China. A woman should be entitled to take all maternity leave, but not to extend it. Additional leave may be treated as sick leave or another kind of leave.

Colombia. General labour standards make provision for this type of leave in the event of acts of God.

Comoros. Upon presentation of a certificate attesting to the child's hospitalization.

Congo. Taking into account the age of the child.

Costa Rica. These cases go beyond the minimum guarantees envisaged by the Convention. They should be left to member States to consider in the light of their own economies and social security systems.

Czech Republic. In accordance with national laws and practice.

Denmark. DA: It must be in accordance with national rules.

Dominica. CSA: No.

DAWU: An extension of maternity leave may be requested.

DTU: After the expiry of any compulsory post-natal leave, the woman is expected to report back to work. Legal provision should be made to grant flexible periods off so that the woman could attend to the child in hospital.

WAWU: Yes.

Ecuador. CONAMU: Yes. The leave should be extended until the child leaves hospital.

UGTE: Yes.

Egypt. Federation of Egyptian Industries: No.

Egyptian Trade Union Federation: Yes.

Estonia. Regulations should be flexible.

Ethiopia. Only if she has already postponed the portion of her maternity leave.

Finland. This should depend on the child's condition.

TT, LTK, Federation of Finnish Enterprises and KT: No. This should be left to the member States to decide.

France. CFDT: Yes. Notably in the case of a premature birth.

CGT-FO: Yes. This period should be taken into account in the postnatal leave.

Germany. It makes no sense from the point of view of the health of mother and child to draw a distinction between compulsory and non-compulsory maternity leave. It is also disadvantageous to the employer from the point of view of legal clarity and personnel planning.

DGB: No. The purpose of maternity leave is to protect the mother's health. For this case, other options should be made available.

DAG: Yes, but only if it is taken as parental leave.

Ghana. Provided a medical certificate is produced.

NCWD: Should be allowed more leave as recommended by a medical doctor of a government-recognized hospital.

GEA: No.

Honduras. Given that her presence is necessary to attend to her child.

COHEP: No. Legislation should provide for cases similar to illness during vacations, but this should not exceed two weeks.

India. Depending upon the health of the mother and the child.

National Front of Indian Trade Unions: No.

Indonesia. Based on health care considerations of mother and child.

APINDO: No. Another form of leave can be obtained.

Islamic Republic of Iran. Upon certification by the medical committee.

Iraq. General Federation of Trade Unions: Yes.

Italy. CONFINDUSTRIA: Should be handled through collective bargaining or national legislation.

Jamaica. JEF: Supportive, but leave should not be up until the child leaves the hospital.

Japan. The purpose of postnatal leave should be recuperation after confinement. Extending it for other purposes is inconsistent with the aim of maternity protection. If necessary, such extension should be considered within a different framework, such as the compatibility of work with child-rearing.

NIKKEIREN: Maternity refers to a condition inherent in the woman herself, and should not be expanded to refer to a condition of her child or spouse.

JTUC-RENGO: Yes.

Jordan. Amman Chamber of Industry: No. The maternity leave is provided for both mother and child and may not be postponed.

Republic of Korea. If maternity leave is made too flexible, it may bring about negative effects on employment and job security.

Lebanon. The woman should be entitled to go to work after the compulsory postnatal leave. A woman may take her unused annual leave for the purpose mentioned.

Lithuania. The period of maternity leave is fixed for the purpose of re-establishing the woman's health and should not be transferred.

Confederation of Lithuanian Entrepreneurs/Employers: Yes.

Centre of Lithuanian Trade Unions: Yes.

Lithuanian Labour Federation: Yes.

Lithuanian Workers' Union: Yes.

Unification of Lithuanian Trade Unions: Yes.

Malaysia. MEF: No. Maternity leave should be taken on a continuous basis with no breaks in between.

Mauritius. MEF: No.

Mexico. This benefit could be determined by way of collective bargaining. Maternity leave should not be extended because the child is hospitalized.

Morocco. Subject to agreement between her and her employer.

FCCIS: Yes.

CDT: Yes.

Mozambique. The necessary period, as determined by the physician, should be considered as sick leave.

Namibia. In principle no, but an exception on medical grounds should be provided for.

NEF: Yes. If agreeable with the employer and if there is no bearing on cash and medical benefits for the mother.

NUNW: Yes.

Netherlands. Deferment is not related to the essential purpose of the maternity leave, which is to provide a period for physical recovery. A solution could be found in the form of consecutive nursing leave or parental leave.

New Zealand. Given a goal of ensuring that a mother is able to care for her child, the manner in which such a goal should be achieved should be determined under national laws and regulations.

NZEF: The proposed provision would not necessarily present a satisfactory solution to a difficult situation.

Norway. According to national legislation, the maternity allowance period may be postponed if the child is admitted to a health institution, in which case the parents' right to leave is correspondingly extended. This presupposes that the child is admitted before the allowance period expires.

Pakistan. PNFTU: Yes.

Papua New Guinea. This depends on medical conditions.

Peru. This matter may be addressed through a collective or individual agreement.

CUT: These contingencies should be handled case by case.

Philippines. Only if the postponed period falls within the time frame of her maternity leave.

Portugal. CIP: The break in leave may extend the total period of absence from work- with disadvantages for the operation of the enterprise. It should not be included in the Recommendation.

Qatar. How to consider absence from work due to the child's hospitalization would be problematic.

Romania. Postnatal leave should complement and alternate with leave to care for an ill child.

National Council of Private Small and Medium-sized Enterprises: Yes.

CSDR: Yes.

Saudi Arabia. Depending on national legislation.

Seychelles. An entitlement to sick leave on behalf of her child is prescribed under national law.

Slovenia. Only in the case of severe illness.

South Africa. This is a rather detailed circumstance that need not be included in the Recommendation.

BSA: Employers have to make special arrangements to accommodate the absence of women on maternity leave, especially where employees are in key positions or in the case of smaller enterprises. Any alternative plans must be arranged with the approval of the employer.

Spain. CIG: Yes.

CCOO: Yes. The leave is independent of the time off to care for the child. In any case, a form of optional leave should be considered for either the father or the mother to care for the child.

Suriname. FAL: No.

Switzerland. VSA: Yes.

Syrian Arab Republic. Leave must be continuous to protect the health of mother and child.

Togo. Maternity leave must be taken as a whole. No portion of it should be postponed.

Tunisia. To the extent possible.

Turkey. TISK: No. A provision could be included in the Convention making it possible to grant the mother additional postnatal leave, where necessary. There would no longer be any need to include the proposed provision in the Recommendation.

United Kingdom. Additional provision for other circumstances should be left to national law and practice.

United States. USCIB: The question highlights why States should not dictate the amount or timing of maternity leave.

Uruguay. National Chamber of Commerce and Chamber of Manufacturers: No.

Viet Nam. It is overly protective and may lead employers not to want to employ women.

Zimbabwe. Should be extended within the limits of other leave. Postponement of maternity leave could prove counter-productive or women become a risk to employ.

ZCTU: Yes. As far as possible.

There was general support for this provision among governments and workers' organizations. It corresponds to Point 15(5) of the Proposed Conclusions. This Point was drafted to recall examples from national law which address the special circumstances of a woman whose child is hospitalized during the non-compulsory portion of her postnatal leave. Several replies affirmed the need for flexibility in such circumstances. The issue was raised as to whether the employer's agreement would be required.

A substantial number of governments and many employers' organizations opposed this provision. A significant number of replies viewed the purpose of maternity leave as primarily the rehabilitation of the mother's health, and noted that leave to care for a sick child once home from the hospital would serve a different purpose. Several replies raised the question as to whether the postponement of leave would even resolve the problem, considering that the mother might still be needed at the hospital on a regular basis. A number of replies favoured the provision of other types of leave to extend a woman's absence from work, such as parental leave, child care leave, unpaid leave, or other leave available to accommodate special circumstances. The question was raised as to whether the provision was too detailed for inclusion in the Recommendation.

In view of the support expressed for the provision, it was included in the Proposed Conclusions without change. The Conference may wish to address some of the issues raised in the replies which are set out above.

Maternity benefits
 

Qu. 17

Where practicable, should the cash benefits to which a woman is entitled during maternity leave and any extension be raised to the full amount of the woman's previous earnings or the amount taken into account for the purpose of computing benefits?

Total number of replies: 101.

Affirmative:78.Algeria, Angola, Argentina, Austria, Barbados, Belarus, Belgium, Benin, Botswana, Brazil, Cameroon, Chad, Chile, China, Colombia, Comoros, Costa Rica, Croatia, Cuba, Cyprus, Czech Republic, Egypt, El Salvador, Estonia, Ethiopia, Finland, France, Germany, Ghana, Greece, Honduras, Hungary, Indonesia, Islamic Republic of Iran, Italy, Jamaica, Jordan, Kenya, Latvia, Lithuania, Luxembourg, Malaysia, Mali, Mauritius, Mexico, Republic of Moldova, Mozambique, Netherlands, Nicaragua, Niger, Oman, Pakistan, Papua New Guinea, Peru, Philippines, Portugal, Qatar, Romania, Russian Federation, San Marino, Seychelles, Slovakia, Slovenia, South Africa, Spain, Sri Lanka, Suriname, Switzerland, Syrian Arab Republic, Tajikistan, Togo, Trinidad and Tobago, Tunisia, Ukraine, United Arab Emirates, Uruguay, Viet Nam, Zimbabwe.

Negative: 10. Australia, Bahrain, Guyana, Japan, Republic of Korea, Namibia, New Zealand, Thailand, Turkey, United Kingdom.

Other: 13. Bulgaria, Canada, Central African Republic, Congo, Denmark, Ecuador, India, Kuwait, Lebanon, Morocco, Norway, Poland, Saudi Arabia.

Argentina. Benefits should be equal to previous average earnings.

CGT: Yes. Cash benefits should be directly linked to the woman's earnings and be sufficient to cover her basic needs.

Australia. A flat-rate benefit promotes greater equity given women's unequal rates of earnings in the workforce. In Australia, women receive either 100 per cent of earnings from their employers or a flat-rate lump sum from the Government. It would be inappropriate for government-funded social security to provide 100 per cent of women's earnings, as it would be inequitable and too costly.

ACTU: Yes.

Austria. A benefit equivalent to previous earnings is preferable.

Azerbaijan. Azerbaijan Trade Unions Confederation: Yes, i.e. the full amount of the woman's earnings, taking into account inflation.

Bahrain. There are no reasons requiring an increase in cash benefits during maternity leave. Only wages due for the stipulated period are to be considered.

Belgium. See Question 8.

Benin. COSI: Yes. It is imperative to apply this in Benin and in Africa to help families. This policy would make it possible to lower maternal and infant mortality rates which are still very high.

Brazil. In accordance with the national legislation in matters of social protection.

CNC and CNI: No.

CNF: The minimum should always be equal to that received during employment.

Bulgaria. Ministry of Labour and Social Policy: Yes; Ministry of Justice and European Legal Integration: No. Cash benefits during maternity leave are equal to 100 per cent of the base salary set in the labour contract.

Canada. Providing full salary replacement during maternity leave would create a considerable burden for public funds and/or private insurance plans or employers. On the other hand, it would ensure that women do not face financial hardship. This would also facilitate a woman's ability to balance work and family responsibilities while her professional activity is interrupted.

CEC: Countries must make reasonable efforts to diminish the economic impact of maternity upon the employee. Nevertheless, this compensation must be in direct correlation with the financial capacity of countries.

CLC: Yes. Assuming there is a maximum amount set according to the average industrial wage.

Central African Republic. See Question 9.

Chile. It is inadmissible for maternity to involve any economic setback.

CPC: In line with her previous income.

China. The benefits during the maternity leave should match the amount of previous earnings. However, member States should be allowed to handle flexibly issues of extension or benefits resulting from "any extension".

Colombia. Benefits should remain the same as when the woman was working. In the case of supplementary leave, benefits could be equivalent to sickness benefits.

Congo. This amount should correspond to the total previous earnings in addition to the amount taken into account for the purpose of computing benefits.

Cuba. The amount taken into account for the purpose of computing benefits.

Cyprus. Provided that any reduction or waiving of taxes or social security contributions will be taken into account so that the net cash benefits will not exceed the net salary.

Czech Republic. UZS „R: The full amount of previous earnings would be very demanding. Its implementation could only be left to national legislation. See answer to 9(1)(a)-(b).

„MK OS: Yes. This should not be left to the will of national legislature.

Denmark. National legislation regulates maternity benefits.

DA: This should not be included in the Recommendation.

FTF: Countries must ensure possibilities of flexible schemes.

LO: Possibility should be provided to maintain and implement such regulations in collective agreements.

Dominica. CSA: Yes.

DAWU: Yes.

DTU: Yes.

WAWU: Yes.

Ecuador. The best solution is to set a percentage of the wage; as it increases, benefits will also rise.

CONAMU: Yes.

UGTE: Yes. A woman worker's income should not be reduced during maternity.

Egypt. Within the framework of the employed woman's wages.

Ethiopia. Provided that the condition permits and the practice is feasible.

Finland. Financial implications and problems in reconciling work and family life may discourage women from having children. In a society where the population is ageing, women should not be discouraged in their decisions concerning having children.

TT, LTK, Federation of Finnish Enterprises and KT: No. The amounts of social benefits depend on many different factors, including the financial resources of a country. Maternity benefits should not be given a special position among social benefits.

France. CNPF: No.

Germany. In general, a woman employee should not suffer any financial loss as a result of pregnancy or childbirth and should therefore be assured, during maternity leave, of an income equivalent to her previous net earnings. However, the employee should be required to meet certain conditions. Cash benefits equivalent to previous earnings are not increases in the sense implied by this question. Another question is who should pay the benefits.

BDA: No.

Ghana. To be determined by national circumstance.

GEA: No. No cash benefits apart from salary.

Guyana. Cash benefits should be based on the amount of earnings usually taken into account for computing benefits.

Honduras. Equivalent to the wages received or accruing to her.

COHEP: No. To prevent maternity from becoming a matter of financial gain and jeopardizing the integration of women at work. Such a measure on its own would be discriminatory against women.

India. It should be three-quarters of the average monthly emoluments computed for the previous three or six months.

AITUC: Yes. To the full amount of women's previous earnings.

Bharatiya Mazdoor Sangh: Yes. Members who can afford to do so should grant cash benefits equal to the full amount of the woman's previous earnings.

Centre of Indian Trade Unions: Yes.

INTUC: Yes.

National Front of Indian Trade Unions: Cash benefits should be equal to previous earnings and be related to productivity.

Iraq. General Federation of Trade Unions: Yes.

Japan. The amount or rate of cash benefits should be determined by each Member in accordance with that country's actual situation.

NIKKEIREN: If cash benefits were increased to the full amount of previous earnings, it would set an unreasonable, and therefore unacceptable, standard for reference. Paragraph 2(1) of Recommendation No. 95 is not a reasonable standard to use even as a reference and should be deleted.

JTUC-RENGO: Yes.

Jordan. Amman Chamber of Industry: Yes. If it is possible and budgets allow for it.

Republic of Korea. Where practicable, the level of cash maternity benefits should be increased on a long-term basis. However, since many countries cannot provide necessary leave and benefits yet, it is unrealistic to prescribe that maternity benefits should be raised to the full amount of the woman's previous earnings, even for the extension period. A practical approach to realizing the objectives of maternity protection should be preferred over a theoretical discussion separated from reality.

FKTU: Yes.

Kuwait. When the economy and social security system are sufficiently developed.

Latvia. The amount taken into account for the purpose of computing benefits.

Lebanon. The realization of this objective depends on the financial circumstances of individual States.

Lithuania. Lithuanian Labour Federation: No.

Malaysia. MAPA: No.

MEF: No. Basic earnings only.

MTUC: Yes. Payment in full.

Mauritius. MEF: See Question 9.

Mexico. Cash benefits should be equal to the full amount of the woman's earnings.

Morocco. Where practicable, to the amount used for the purpose of computing benefits.

FCCIS: Yes.

CDT: Yes.

Mozambique. Each member State should decide on these matters.

OTM: Benefits should be based on her previous remuneration.

Namibia. See Question 9.

NEF: No. Any cash benefits should be consistent with a cut-off point stipulated in national legislation and policies.

NUNW: Yes.

New Zealand. The provision of cash benefits is a matter best dealt with by agreement between employer and employees or national laws and regulations. This question is premised on there being either a contributory social insurance scheme or universal coverage by the social welfare system of women on parental leave.

Norway. Maternity allowance is computed on the basis of the income of the person concerned.

Oman. Providing the amount of benefits is left to be determined by the entity for which the woman works.

Peru. CUT: The wording "or the amount taken into account for the purpose of computing benefits" should be dropped.

Philippines. The woman should be fully compensated during maternity leave. She would need as much, or even more, of her previous earnings, to ensure the full and healthy maintenance of herself and her child in accordance with suitable standards of living.

Poland. Maternity benefits are granted from the start at the rate of 100 per cent of a woman's remuneration.

KPP: Yes.

OPZZ: Yes.

Portugal. Yes. See Question 9(1).

CIP: The quantification of benefits should not be part of any international text; rather, it should be left to domestic legislation of member States.

UGT: Yes. This provision should be included in the Convention.

Saudi Arabia. Depending on national legislation.

South Africa. BSA: Any extension of benefits should be left to collective bargaining. It should not be included in a Recommendation.

Sri Lanka. Full amount of the previous earning should be taken into account for computing benefits.

Togo. In accordance with national labour law and practice.

Trinidad and Tobago. ECA: Unclear.

NATUC: Yes. Otherwise the woman's standard of living will be reduced.

Tunisia. Increasing benefits to 100 per cent of previous earnings should remain an option, not an obligation, taking into account the diverse economic capacities of countries and their social security systems.

Turkey. Provisions regarding cash benefits should be flexible.

TISK: The level of the cash benefits should be left to national practice.

TÜRK-IÔ: Yes.

United Kingdom. Members should be free to determine the level of maternity benefits according to national legislation, subject to a minimum rate linked to sickness benefit payments.

United States. USCIB: No. Maternity benefits should be treated on the same basis as any other disability.

AFL-CIO: Yes. Provided, however, that benefits should be supplemented through appropriate social assistance mechanisms if wage replacement alone is inadequate to provide a suitable standard of living for the woman and her children.

Uruguay. National Chamber of Commerce and Chamber of Manufacturers: No. In accordance with circumstances of each country and its national legislation.

Venezuela. CTV: Cash benefits should be paid in accordance with the rates provided under the social security system for leave.

Viet Nam. It depends on the circumstances of the country.

Zimbabwe. Benefits should be paid to the full amount, with social security providing for the other percentage.

ZCTU: Yes. Full cash benefits pursuant to Recommendation No. 95, Paragraph 2(1).

A convincing majority of replies favoured this provision which reflects Paragraph 2(1) of Recommendation No. 95. Broad agreement was evident regarding the principle that a woman should not suffer financial loss or have her health or that of her child put at risk due to lack of income during maternity leave.

As in Question 9(1)(a) and (b) above, many replies expressed a preference for one of the two methods — hence several of them consisted of a qualified answer that described their choice. For instance, twice as many of those replies favoured raising benefits to the full amount of the woman's previous earnings, rather than to the amount taken into account for the purpose of computing benefits. The Office has, however, retained the options of either raising a woman's benefits to the full amount of her previous earnings, or "of such of those earnings as are taken into account for the purpose of computing benefits", reworded to align with Point 9(3) reviewed earlier.

Several replies stressed that the level of benefits paid would depend upon the economic circumstances of each Member. A number considered that the level of cash benefits should be determined by national law, and that any extension of benefits should be determined through collective bargaining. One government expressed concern that provision of full salary replacement during maternity leave might create unnecessary burdens upon public or private insurance programmes, while another pointed out that the question presupposed the existence of a social security scheme within a country, which was not always the case. The wording "where practicable" in Point 16 takes these considerations into account.

Point 16 of the Proposed Conclusions goes beyond the provision in Paragraph 2(1) of Recommendation No. 95, which only envisaged a cash benefit of 100 per cent of the woman's previous earnings taken into account for the purpose of computing benefits. Full income replacement was not envisaged. Point 16 of the Proposed Conclusions, with slight modifications as noted above, contains the formulation retained by the Office.

Qu. 18

To the extent possible, should the medical benefits referred to in Question 11 above include: (a) care given in a doctor's office, at home or in a hospital or other medical establishment by a general practitioner or a specialist; (b) care given by qualified midwives or other maternity services at home, in hospital or other medical establishments; (c) maintenance in hospitals or other medical establishments; (d) any necessary pharmaceutical and medical supplies, examinations and tests prescribed by a medical practitioner or other qualified person; (e)dental and surgical care?

Global reply to Question 18:

Total number of replies: 12.

Affirmative: 5.Australia, Hungary, Netherlands, Norway, Portugal.

Other: 7. Costa Rica, Japan, Mexico, New Zealand, Russian Federation, Switzerland, United States.

Subparagraph (a) :

Total number of replies: 88.

Affirmative: 75. Algeria, Angola, Argentina, Austria, Barbados, Belarus, Belgium, Benin, Botswana, Brazil, Bulgaria, Cameroon, Central African Republic, Chad, China, Colombia, Comoros, Congo, Croatia, Cyprus, Czech Republic, Ecuador, Egypt, El Salvador, Finland, France, Germany, Ghana, Greece, Guyana, Honduras, India, Indonesia, Islamic Republic of Iran, Italy, Jamaica, Jordan, Kenya, Republic of Korea, Kuwait, Latvia, Lebanon, Lithuania, Luxembourg, Malaysia, Mali, Mauritius, Republic of Moldova, Mozambique, New Zealand, Nicaragua, Niger, Pakistan, Papua New Guinea, Peru, Philippines, Qatar, Romania, San Marino, Seychelles, Slovakia, Slovenia, South Africa, Spain, Sri Lanka, Suriname, Thailand, Trinidad and Tobago, Tunisia, Ukraine, United Arab Emirates, United Kingdom, Uruguay, Viet Nam, Zimbabwe.

Negative: 6. Bahrain, Namibia, Oman, Syrian Arab Republic, Togo, Turkey.

Other: 7. Canada, Chile, Cuba, Denmark, Ethiopia, Norway, Saudi Arabia.

Subparagraph (b) :

Total number of replies: 88.

Affirmative: 76. Algeria, Angola, Argentina, Austria, Bahrain, Barbados, Belarus, Belgium, Benin, Botswana, Brazil, Bulgaria, Cameroon, Canada, Central African Republic, Chad, China, Colombia, Comoros, Congo, Croatia, Cyprus, Czech Republic, Denmark, Ecuador, Egypt, Finland, France, Germany, Ghana, Greece, Guyana, Honduras, India, Indonesia, Islamic Republic of Iran, Italy, Jamaica, Jordan, Kenya, Republic of Korea, Kuwait, Latvia, Lebanon, Lithuania, Luxembourg, Malaysia, Mali, Mauritius, Republic of Moldova, Mozambique, New Zealand, Nicaragua, Niger, Pakistan, Papua New Guinea, Philippines, Qatar, Romania, San Marino, Seychelles, Slovakia, Slovenia, South Africa, Sri Lanka, Suriname, Tajikistan, Thailand, Trinidad and Tobago, Tunisia, Ukraine, United Arab Emirates, United Kingdom, Venezuela, Viet Nam, Zimbabwe.

Negative: 8. Cuba, Namibia, Oman, Peru, Spain, Syrian Arab Republic, Togo, Turkey.

Other: 4. Chile, Ethiopia, Morocco, Norway.

Subparagraph (c) :

Total number of replies: 86.

Affirmative: 77. Algeria, Angola, Argentina, Austria, Barbados, Belgium, Benin, Botswana, Brazil, Bulgaria, Cameroon, Canada, Central African Republic, Chad, China, Colombia, Comoros, Congo, Croatia, Cuba, Cyprus, Czech Republic, Denmark, Ecuador, Egypt, Finland, France, Germany, Ghana, Greece, Guyana, Honduras, India, Indonesia, Islamic Republic of Iran, Italy, Jamaica, Jordan, Kenya, Republic of Korea, Kuwait, Latvia, Lebanon, Lithuania, Luxembourg, Malaysia, Mali, Mauritius, Republic of Moldova, Mozambique, New Zealand, Nicaragua, Niger, Pakistan, Papua New Guinea, Peru, Philippines, Qatar, Romania, San Marino, Seychelles, Slovakia, Slovenia, South Africa, Spain, Sri Lanka, Suriname, Tajikistan, Thailand, Trinidad and Tobago, Tunisia, Turkey, Ukraine, United Arab Emirates, United Kingdom, Viet Nam, Zimbabwe.

Negative: 5. Bahrain, Namibia, Oman, Syrian Arab Republic, Togo.

Other: 4. Chile, Ethiopia, Morocco, Norway.

Subparagraph (d) :

Total number of replies: 87.

Affirmative: 76. Algeria, Angola, Argentina, Austria, Bahrain, Barbados, Belarus, Belgium, Benin, Botswana, Brazil, Bulgaria, Cameroon, Canada, Central African Republic, Chad, China, Colombia, Comoros, Croatia, Cuba, Cyprus, Czech Republic, Ecuador, Egypt, Estonia, Finland, France, Germany, Ghana, Greece, Guyana, Honduras, India, Islamic Republic of Iran, Italy, Jamaica, Jordan, Kenya, Republic of Korea, Kuwait, Latvia, Lebanon, Lithuania, Luxembourg, Malaysia, Mali, Mauritius, Republic of Moldova, Mozambique, New Zealand, Nicaragua, Pakistan, Papua New Guinea, Peru, Philippines, Qatar, Romania, San Marino, Saudi Arabia, Seychelles, Slovakia, Slovenia, South Africa, Sri Lanka, Suriname, Tajikistan, Thailand, Trinidad and Tobago, Tunisia, Turkey, Ukraine, United Arab Emirates, United Kingdom, Viet Nam, Zimbabwe.

Negative: 6. Namibia, Niger, Oman, Spain, Syrian Arab Republic, Togo.

Other: 5. Chile, Denmark, Ethiopia, Morocco, Norway.

Subparagraph (e):

Total number of replies: 85.

Affirmative: 68. Algeria, Angola, Argentina, Austria, Barbados, Belgium, Benin, Botswana, Brazil, Bulgaria, Cameroon, Canada, Central African Republic, Chile, Colombia, Comoros, Croatia, Cuba, Cyprus, Czech Republic, Ecuador, Egypt, Estonia, Finland, Ghana, Greece, Guyana, Honduras, India, Islamic Republic of Iran, Italy, Jamaica, Jordan, Republic of Korea, Latvia, Lithuania, Luxembourg, Malaysia, Mali, Mauritius, Republic of Moldova, Mozambique, Nicaragua, Niger, Pakistan, Papua New Guinea, Peru, Philippines, Qatar, Romania, San Marino, Saudi Arabia, Seychelles, Slovakia, Slovenia, South Africa, Spain, Sri Lanka, Tajikistan, Thailand, Trinidad and Tobago, Tunisia, Turkey, Ukraine, United Arab Emirates, United Kingdom, Viet Nam, Zimbabwe.

Negative: 8. Bahrain, China, Germany, Namibia, Oman, Suriname, Syrian Arab Republic, Togo.

Other: 9. Chad, Congo, Denmark, Ethiopia, Kuwait, Lebanon, Morocco, New Zealand, Norway.

Algeria. (d) As part of maternity coverage if linked to childbirth. Otherwise, as part of health insurance benefits. (e) If medically justified and as part of health benefits, rather than maternity benefits.

Argentina. CGT: Yes to (a)-(e). (a) Specialized medical care should be available during pregnancy and confinement, as should specialist neonatal care for the baby. Continuity of care must be guaranteed. (b) Care should be provided by suitable staff, wherever possible in reputable establishments which observe high standards of hygiene.

Australia. (a)-(e) Australian residents have access to most health benefits associated with maternity free of charge through the universal health-care system. In countries where there is no universal health-care system, such benefits could be provided through a variety of insurance mechanisms.

ACTU: Yes to (a)-(e).

Azerbaijan. Azerbaijan Trade Unions Confederation: Yes to (a)-(e).

Barbados. (a) Provided through public health care.

Belgium. CNT: (a)-(e) There is no need to enter into such detail. The text should provide that necessary care be given. The importance of preventive, rather than simply curative, health care should be stressed.

Benin. COSI: Yes to (a)-(e). This policy would make it possible to lower maternal and infant mortality rates which are still very high in Africa.

Brazil. CNC and CNI: Yes to (a)-(d). (e) Surgical care, yes; dental, no.

CNF: No to (a) ; yes to (b) and (d)-(e). (a) Always by a specialist. (b) Only in the absence of a specialist.

Canada. (a) Public health insurance in Canada covers the necessary levels of medical benefits. (b) To the extent that midwives are provided for under the national health care system. (c)-(e) To the extent covered by public health insurance.

CEC: (a)-(e) This point is not appropriate in a Convention on labour standards.

CLC: Yes to (a)-(d).

Chad. (e) Yes to surgical care; no to dental care.

Chile. (a) Appropriate health care requires the involvement and supervision of a competent medical practitioner. Care at home should be considered only when, for health reasons, it becomes impossible to transfer the woman to a clinic. Nevertheless, much of this care can be provided by a midwife. (b) Include "at the surgery" and with the same reservation regarding care at home. (c) Whenever ordered by the practitioner. (d) With a maximum limit to restrain excessive medical prescriptions, but in extreme circumstances envisaging coverage in excess of that limit.

CPC: (a)-(d) Yes. In accordance with the health plan the woman has contracted. (e) If included in the woman's health plan.

China. (a) Care should generally be provided by a general practitioner or a midwife, and, if necessary, by a specialist. This would contribute to reduction of expenses. (c) Only when necessary. (d) However, "any necessary..." should be consistent with the basic criteria of medical practice in each country. (e) In principle, no. It is not appropriate to mix dental care and maternity care. Surgical care should be confined to care of unusual childbirth, such as perineal section or Caesarean birth.

Congo. Yes to (a)-(d). (e) Could be left to the discretion of each State.

Costa Rica. (a)-(e) Medical benefits payable before, during and after confinement should be sufficient to ensure good and healthy conditions for the mother and her child, as determined in national legislation and in accordance with the prevailing social security system.

Cuba. (a) It should include care given by a general practitioner or specialist depending on the circumstances of the pregnancy, in a doctor's office or a hospital, and should also include stomatological care. (b) One should seek to have access to the most qualified medical personnel possible. (c) Depending on the conditions of the pregnancy and national circumstances.

Czech Republic. UZS „R: (a)-(e) Yes. Health services should be provided in full, including to immigrant and unemployed women.

„MK OS. (a)-(e) Yes. Not to be left only to national legislation.

Denmark. (a) Health benefits should be of such a quality that the health of mother and child is not jeopardized. (d) Rules on medical benefits should be laid down nationally. (e) Dental care should depend on individual countries' practice.

DA: (a) ILO should not set the standard in its instruments.

Dominica. CSA: No to (a), (b) and (d). Yes to (c) and (e). (e) Only if related to pregnancy.

DAWU: Yes to (a)-(e).

DTU: No to (a)-(c) ; yes to (d)-(e). (a) This could give rise to abuse. (b) Cost of leave and services should be related to state institutions. The woman should have a choice, but any additional costs based on her choice should rest with her.

WAWU: Yes to (a)-(e). (e) Dental care is usually crucial during pregnancy.

Ecuador. UGTE: Yes to (a)-(e). (a) Professional assistance should include all essential care.

Egypt. (a)-(e) According to the provisions of the medical insurance law.

Egyptian Trade Union Federation: (a)-(e) Yes. In accordance with legislation and regulations in force in each State.

Estonia. (e) Extremely important to include in a Recommendation.

Estonian Association of Trade Unions: Yes to (a)-(c).

Ethiopia. (a)-(e) Many of the provisions are fixed in collective agreements. (e) Depends on the health service provided.

CETU: Yes to (a)-(d) ; no to (e).

Finland. TT, LTK and Federation of Finnish Enterprises: No to (a)-(e).

France. CNPF: Yes to (a)-(e).

CFDT: Yes to (a)-(e). (e) Surgery related to pregnancy. Dental problems aggravated by pregnancy.

CFE-CGC: Yes to (a)-(e).

CFTC: Yes to (a)-(e). (c) With no time-limit. (e) Dental care in the event of great difficulties.

CGT-FO: Yes to (a)-(e).

Germany. (e) These come under normal sickness benefits, as opposed to maternity benefit.

BDA: Yes to (a)-(e).

DGB: Yes to (a)-(e).

DAG: Yes to (a)-(e).

Ghana. NCWD: Yes to (a), (b) and (e). (b) Registered midwives and registered maternity services. (c)-(e) A portion.

GEA: Yes to (a)-(e). (e) Not the provision of dentures.

India. AITUC: Yes to (a)-(d). (a)-(d) These should be free for pregnant women.

Bharatiya Mazdoor Sangh: Yes to (a)-(e). (b) There must be freedom to use the best available services. (e) If associated with maternity.

National Front of Indian Trade Unions: No to (b). (a) As required. (c) In hospital or in establishments where costs are equal to hospitals. (e) Surgery in the event of complicated labour.

Indonesia. (a)-(e) As mentioned in Recommendation No. 95, Paragraph 2(2).

APINDO: (a)-(e) Yes. At the discretion of the company.

Iraq. General Federation of Trade Unions: Yes to (a).

Italy. CONFINDUSTRIA: (a)-(e) Should be handled through collective bargaining or national legislation.

Jamaica. JEF: Yes to (a)-(d). (e) Yes to surgical care, no to dental care.

Japan. (a)-(e) It is not necessary to provide medical benefits in kind. It should also be permitted to provide the woman with cash to help with the medical expenses, separate from the cash benefits for maintenance of living. See Questions 8 and 11.

NIKKEIREN: (a)-(e) In Japan, medical benefits include (a) to (e).

JTUC-RENGO: Yes to (a)-(e).

Jordan. Amman Chamber of Industry: No to (a)-(e). The employer has nothing to do with medical benefits, and is only responsible for granting maternity leave by law.

Federation of Jordanian Chambers of Commerce: Yes to (a)-(d). No to (e).

Republic of Korea. (a)-(e) Each member State should offer a broad range of medical services to its full capacity, within the framework of the social security system, including through health insurance.

KEF: No to (b) and (e).

Kuwait. (e) Dental care should be restricted to pathological cases and attention should be paid to prevention. Expensive plastic surgery should be avoided.

Lebanon. (a)-(d) To the extent possible, in accordance with national legislation. (e) Dental and surgical care is provided for under national legislation, but entitlements and benefit award methods are determined by ministerial decree.

Lithuania. (e) Only urgent assistance.

Confederation of Lithuanian Entrepreneurs/Employers: Yes to (a)-(e). (d)-(e) In accordance with insurance companies, medical funds and the employer's insurance.

Unification of Lithuanian Trade Unions: Yes to (a)-(d). No to (e).

Malaysia. (a)-(e) Subject to certain limitations.

MAPA: No to (a)-(e).

MEF: (a)-(e) No. Medical benefits extended to an employee normally exclude medical cases relating to pregnancy and childbirth.

MTUC: Yes to (a)-(d) ; no to (e). (a) At home, for delivery purposes.

Mali. Yes to (a)-(e). (a) Taking into account weaknesses in the health services in developing countries. (d) Qualifications should be supported by an authorization to practice. (e) In authorized establishments.

Mauritius. Yes to (a)-(e). (c) Under care of a general practitioner or specialist. (d) By a medical practitioner.

MEF: (a)-(e) Provided by state hospitals.

Mexico. (a)-(e) The clauses relating to medical benefits in this question should be more general and grouped together in terms such as medical, surgical, hospital and prophylactic care. It should be up to each country to define materials, places and specialities in its legislation.

Morocco. (b) Care given by midwives in public hospitals. (c) Maintenance in hospitals. (d)  Necessary medicines and tests. (e) Surgery.

FCCIS: (a)-(e) To be negotiated between the social partners (collective agreement).

CDT: Yes to (a)-(e).

Mozambique. (b) Provided that quality care is guaranteed. (c) If better care and equipment are available. (e) If necessary.

OTM: Yes to (a)-(e). Depending on the level of development in each country.

Namibia. (a) Should be covered under medical aid schemes, not linked to maternity benefits.

NEF: Yes to (a)-(d) ; no to (e). (a)-(b) The role of the traditional birth attendant is vital in remote rural areas. To incorporate such services, home care should be included. (e) This specialized field needs to be considered separately.

NUNW: Yes to (a)-(e). (c) As long as medically related.

Netherlands. (a)-(e) On the understanding that the levying of a personal contribution (cost-sharing) is permitted and to the extent that the medical care is necessary in connection with the pregnancy and/or delivery.

FNV: (a)-(e) No cost-sharing should be permitted for costs relating to pregnancy and confinement. See Question 11.

New Zealand. (a)-(e) Medical benefits should be dealt with through the health system of member States, rather than under labour conventions. There should not be any mention of these benefits in any instrument adopted. (a) See Question 1. States should make every effort to ensure that adequate maternity medical benefits are provided. A general requirement that adequate health benefits be provided and that pregnant or nursing women and their children have access to those benefits would be as effective, if not more, than the provisions below. The exact benefits to be provided should be determined by national laws and regulations. (b) This matter should be decided by individuals in accordance with their own preferences, taking into account national laws and practices. (c)-(e) See 1 and 18(a). (c) Hospitalization should be available when needed. (d) Where resources are required to ensure that medical care is adequate, these should be made available as a part of those medical benefits. (e) The connection between dental care and pregnancy is not sufficiently evident to justify including this benefit. Surgical care, when required due to any pregnancy condition, should be provided for under reasonable medical benefits.

Nicaragua. (c) This is determined by social security. (e) It should be covered by social security.

Niger. (b) The woman should be placed in conditions which facilitate maternity. (c) Keeping costs in mind. (d) The employer could partially guarantee coverage at a given rate. (e) Keeping in mind the cost of certain dental and surgical care.

Norway. (a)-(e) The revised Recommendation should lay down guidelines for medical benefits under the Convention, as in Question 11. National legislation should, as far as possible, provide benefits specified in (a)-(e). (d) In Norway, outside hospitals and institutions, benefits are in general only paid to cover important medicines rather than any necessary medicine. (e) Not ordinary protective dental care.

Oman. (a)-(e) This is to be determined by national legislation or the procedures of the entity where the woman works, or according to the provisions of the contract concluded between the woman and the establishment.

Papua New Guinea. (a)-(e) So long as women workers are covered under superannuation schemes or medicare.

Peru. CUT: Yes to (a)-(e).

Poland. KPP: Yes to (a)-(e).

OPZZ: Yes to (a)-(e).

Portugal. (a)-(e) As far as possible.

CIP: (a)-(e) Specification of medical benefits should not be part of an international instrument but should be left to national legislation.

CAP: Yes to (a)-(e).

CGTP: Yes to (a)-(e).

Qatar. (a)-(e) Provided that the assistance granted is related to pregnancy and childbirth.

Romania. National Council of Private Small and Medium-sized Enterprises: Yes to (a), (c) and (e). No to (b) and (d). (b) Could be included in collective agreements according to available resources. (d) Only medical and pharmaceutical products prescribed by a medical practitioner, whether a regular doctor or a specialist recommended by the regular doctor. (e) Only those relevant to the pregnancy.

Russian Federation. (a)-(e) Such benefits are provided under national legislation.

Saudi Arabia. (a) Depending on national legislation.

South Africa. Yes to (a)-(e). (e) If dental and surgical care are related to the pregnancy.

BSA: (a) Great care should be taken to ensure that medical benefits should not be exploited and should not be provided to the detriment of other employees or needy people. (e) It might be difficult to prove a direct link between pregnancy and the required dental work.

Spain. (a) As far as possible. The examples listed go far beyond Paragraph 2(2) of Recommendation No. 95. (e) If arising out of maternity. Dental and surgical protection established without restrictions seems excessive.

CIG: Yes to (a)-(e).

CCOO: Yes to (a)-(e).

Suriname. (e) We do not see any direct relation between dental care and maternity.

ASFA: Yes to (a)-(d). (e) Not unless the need for dental or surgical care results from pregnancy.

FAL: Yes to (a)-(e).

Switzerland. (a)-(e) Consider shifting these provisions to the Convention to supplement Question 11.

VSA: Yes to (a)-(e).

Syrian Arab Republic. (a)-(e) This should be left to national laws and regulations.

Trinidad and Tobago. ECA: Yes to (a)-(d). No to (e).

NATUC: Yes to (a)-(e).

Turkey. (a)-(b) This should be left to national legislation.

TISK: (a)-(e) The benefits granted during maternity will be proportionate to the economic situations of individual member States, which are at varying levels of development. Medical benefits should be determined through the law and practice of each member State.

TÜRK-IÔ: Yes to (a)-(e).

United States. (a)-(e) Maternity benefits should be provided on the same basis as other medical benefits.

USCIB: No to (a)-(e).

AFL-CIO: Yes to (a)-(e). (e) If necessary for the health and well-being of the mother or child.

Uruguay. National Chamber of Commerce and Chamber of Manufacturers: (a)-(e) No. In accordance with law and circumstances of each country.

Venezuela. CTV: Yes to (a)-(e).

Zimbabwe. (a)-(e) Either through an existing medical aid scheme or at the expense of the employee.

ZCTU: Yes to (a)-(e). (d)-(e) If connected to maternity care.

Most governments, as well as employers' and workers' organizations, supported this provision, which elaborates further upon the provision of medical benefits contained within Points 9(1) and 9(5) of the Proposed Conclusions. The proposal recalls the substance of Paragraph 2(2) of Recommendation No. 95. A large number of replies emphasized that medical services related to pregnancy should be provided in accordance with national laws and regulations or collective agreements. A few objections viewed medical benefits provided during maternity leave as more appropriately linked with state-run medical aid schemes, rather than with maternity leave. Some stated that benefits should be provided in accordance with a woman's health care plan. Some governments, as well as employers' organizations, explicitly stated that employers should not be responsible for providing medical benefits. A few questioned the appropriateness of including a list of medical services in an international instrument on labour standards. Slightly less support was evident for subparagraph (e), regarding the provision of dental and surgical care, than for the other types of care mentioned in- (a)-(d). Some saw little causal link between pregnancy and dental care and questioned whether (e) was necessary within a Recommendation on maternity protection.

The Office views the use of the phrase "should include" within this point to imply that the medical services enumerated are non-exhaustive. Members may provide additional medical benefits, in accordance with national laws and regulations, collective agreements, private insurance schemes or level of development. Therefore, the phrase in accordance with "national laws or regulations" was not included, or one similar to 2(5) of Recommendation No. 95. The Office considers that other medical services than those provided for by the Member, including those provided in accordance with private insurance schemes, could be taken into account. This provision has been included as Point 17 of the Proposed Conclusions.

Financing of benefits
 

Qu. 19

Should the cash and medical benefits be provided: (a)  through compulsory social insurance; (b)  through public funds; (c)  in a manner determined by national law and practice?

Global reply to Question 19:

Total number of replies: 7.

Affirmative: 1. Australia,

Other: 6. Denmark, Hungary, Mexico, Norway, Poland, Portugal.

Subparagraph (a) :

Total number of replies: 74.

Affirmative: 53. Algeria, Argentina, Barbados, Belarus, Benin, Brazil, Cameroon, Central African Republic, China, Colombia, Comoros, Congo, Croatia, Cyprus, Czech Republic, Ecuador, Egypt, Estonia, France, Greece, Guyana, Honduras, India, Indonesia, Islamic Republic of Iran, Italy, Jamaica, Jordan, Kuwait, Latvia, Lithuania, Mali, Mauritius, Republic of Moldova, Mozambique, Namibia, Netherlands, Nicaragua, Oman, Papua New Guinea, Peru, Philippines, San Marino, Slovakia, Suriname, Tajikistan, Thailand, Trinidad and Tobago, Tunisia, Ukraine, United Kingdom, Viet Nam, Zimbabwe.

Negative: 19. Bahrain, Botswana, Bulgaria, Cuba, Ethiopia, Ghana, Kenya, Republic of Korea, Malaysia, New Zealand, Niger, Pakistan, South Africa, Spain, Sri Lanka, Syrian Arab Republic, Turkey, United Arab Emirates, United States.

Other: 2. El Salvador, Luxembourg.

Subparagraph (b) :

Total number of replies: 59.

Affirmative: 26. Barbados, China, Colombia, Croatia, Cuba, Cyprus, Czech Republic, Estonia, Guyana, Jamaica, Jordan, Kuwait, Lithuania, Luxembourg, Mauritius, Republic of Moldova, Mozambique, Netherlands, Nicaragua, Papua New Guinea, Peru, Philippines, Trinidad and Tobago, Ukraine, United Kingdom, Viet Nam.

Negative: 32. Bahrain, Benin, Botswana, Brazil, Bulgaria, Central African Republic, Cameroon, Ecuador, Egypt, Ethiopia, Ghana, Honduras, Kenya, Republic of Korea, Mali, Namibia, New Zealand, Niger, Oman, Pakistan, Slovakia, South Africa, Spain, Sri Lanka, Suriname, Syrian Arab Republic, Tajikistan, Thailand, Turkey, United Arab Emirates, United States, Zimbabwe.

Other: 1. India.

Subparagraph (c) :

Total number of replies: 84.

Affirmative: 79. Angola, Bahrain, Barbados, Belarus, Belgium, Benin, Botswana, Brazil, Bulgaria, Cameroon, Canada, Central African Republic, Chad, Chile, China, Colombia, Comoros, Congo, Costa Rica, Cuba, Cyprus, Czech Republic, Ecuador, Estonia, Ethiopia, Finland, France, Germany, Ghana, Guyana, Honduras, India, Jamaica, Japan, Jordan, Kenya, Republic of Korea, Kuwait, Lithuania, Mali, Mauritius, Republic of Moldova, Morocco, Mozambique, Namibia, Netherlands, New Zealand, Nicaragua, Niger, Norway, Oman, Pakistan, Papua New Guinea, Peru, Philippines, Qatar, Romania, Russian Federation, San Marino, Saudi Arabia, Seychelles, Slovakia, Slovenia, South Africa, Spain, Sri Lanka, Suriname, Switzerland, Syrian Arab Republic, Togo, Trinidad and Tobago, Turkey, Ukraine, United Arab Emirates, United Kingdom, United States, Uruguay, Viet Nam, Zimbabwe.

Negative: 3. Algeria, Egypt, Thailand.

Other: 2. Austria, Lebanon.

Algeria. (a) In countries without obligatory social insurance schemes, at least provide free medical benefits through the public health structures.

Argentina. CGT: Yes to (a) ; no to (b) and (c). (b) Public funds should provide complementary benefits and cover cases where benefits are not available from other sources. (c) Social security contributions by employers should finance medical insurance and the necessary benefits.

Australia. (a)-(c) All of the above options should be acceptable methods for the provision of benefits.

ACTU: (b) Provision of benefits through public funds has the advantage that the availability of benefits is not dependent on previous workforce status. (c) Yes. The instrument should also provide that benefits may be provided by employers in the public and private sectors through collective agreements.

Austria. (c) The question of financing should be determined with reference to Article 53(2) of the revised European Code of Social Security.

BAK: Yes to (a)-(c). (b) A minimum level of benefits for those who are uninsured.

ÖGB: Yes to (a).

Azerbaijan. Azerbaijan Trade Unions Confederation: Yes to (a)-(c). (a) Only cash benefits. (b) Medical benefits.

Belgium. (c) If benefits are financed by employers' contributions, the level of contribution must be reasonable to avoid negative effects on women's employment.

Benin. (b) The economic situation of developing countries may not allow public funding at the current time.

COSI: Yes to (a)-(c).

Botswana. (c) To take into consideration the economic and social development of the member State.

Brazil. (a) In accordance with the legislation of the member State in matters of social protection.

CNC and CNI: No to (a)-(b) ; yes to (c).

CNF: Yes to (a) and (c). (a) Available to all without distinction.

Canada. CEC: (c) To be determined by national legislation.

CLC: Yes to (a)-(b).

Central African Republic. (b) The current economic context would hardly permit such expenditure. (c) On condition that it is effective.

Chile. (c) Whatever the system of financing established, the Convention should establish one guiding principle: society as a whole should bear the responsibility for the cost of maternity, since, in the long term, it will enjoy the ensuing benefits.

CPC: Yes to (c).

China. (a) Cash benefits resulting from extension of maternity leave should not be paid by compulsory social insurance. (b) To provide benefits that fall beyond statutory maternity insurance, public funds or social assistance funds should be established.

Colombia. (a) Legislation on maternity benefits should specify how they are to be financed.

Comoros. (a) So as not to increase the cost to employers and to ensure benefits.

Croatia. (a) Financing of benefits should be regulated by the Convention, not the Recommendation.

Croatian Association of Employers. Financing could be regulated by the Recommendation.

Cyprus. (a)-(c) To be transferred to the Convention with the understanding that (a), (b) and (c) are alternative methods.

Denmark. (a)-(c) This should be decided in accordance with national law and practice.

Dominica. CSA: No to (a) and (b) ; yes to (c). (a) Through voluntary social insurance. The level of benefits would vary according to contributions.

DAWU: Yes to (a)-(c).

DTU: Yes to (a)-(c).

WAWU: Yes to (a).

Ecuador. (b) Both public and private.

CONAMU: Yes to (b).

UGTE: Yes to (a)-(b). (a) Also by the enterprise that employs the woman. (b) For women not covered by compulsory social insurance.

El Salvador. (a) In El Salvador, cash and medical benefits are financed by social security.

Estonia. (c) All forms would be included.

Ethiopia. (a) May not be practicable in most developing countries where the economy is not strong enough to provide medical benefits through social insurance. (b) Similar to 19(a).

CETU: (c) Yes.

Finland. (a)-(c) Should be determined by national law and practice, but no mother should be excluded from medical services.

TT, LTK and Federation of Finnish Employers: No to (a)-(b).

KT: Yes to (a)-(b).

SAK, STTK, AKAVA: Yes to (a)-(b).

France. CNPF: Yes to (c).

CFDT: Yes to (a) and (c). (a) Social insurance covering all women, including the unemployed. (c) Following consultation with the social partners.

CFE-CGC: Yes to (a) and (c).

CFTC: Yes to (a)-(b). (a) Through a social security-type entity. (b) To avoid disparities among employed women. No to (c), except for countries which already have obligatory social insurance.

CGT-FO: Yes to (a) ; no to (b)-(c). (b) Unless (a) is not applicable.

Germany. (b) Exactly how the costs of medical benefits and cash benefits are shared is a matter for national legislation. Making employers bear the full cost of maternity protection would be just as unrealistic as relieving them of any responsibility.

BDA: No to (a) and (c) ; yes to (b). (b) Maternity benefits should be financed entirely from public funds. Under no circumstances should the employer be made liable for the cost of maternity benefits. Individual employer liability for the cost places women at a disadvantage in the labour market.

DGB: Yes to (a)-(c). (c) The employer should supplement the benefits.

DAG: Yes to (a) and (c). (a) The employer's share of the costs should be determined by national legislation. (c) Employers should contribute in order to provide additional benefits.

Ghana. NCWD: Yes to (a)-(c).

GEA: Yes to (a) and (c). (c) To ensure consistency in practice.

Guyana. (b) Public funds can be used to provide social assistance to the unemployed.

Honduras. (b) Employers, workers and the State must make their contribution.

COHEP: Yes to (a) and (c) ; no to (b). (b) This is dealt with on a tripartite basis.

Hungary. (a)-(c) Means of financing should not be restricted. The efficiency of financing should be the primary consideration.

India. (b) Public funds plus social insurance in the informal/unorganized sector.

AITUC: Yes to (b)-(c). (a)-(c) Paid leave and other benefits should be provided by the employer.

Bharatiya Mazdoor Sangh: Yes to (a)-(c).

Centre of Indian Trade Unions: Yes to (a)-(c).

HMS: Yes to (a)-(c).

INTUC: Yes to (a)-(c).

National Front of Indian Trade Unions: Yes to (a) ; no to (b). (c) The state of the economy should be taken into account and the law should also check the population explosion.

Islamic Republic of Iran. (a) According to the protective system in the country.

Iraq. General Federation of Trade Unions: Yes to (a) and (c) ; no to (b).

Italy. CONFINDUSTRIA: (c) Should be handled through collective bargaining or national legislation.

Japan. NIKKEIREN: (a)-(c) The provision should allow member States to choose among items (a) to (c) according to their actual circumstances.

JTUC-RENGO: Yes to (a)-(c).

Jordan. Federation of Jordanian Chambers of Commerce: Yes to (a) ; no to (b)-(c).

Kenya. (c) To be determined through both individual contracts and collective agreements.

Republic of Korea. Each member State should be allowed to search for the most appropriate schemes for its own reality, given the complex problems posed by the introduction and adoption of such scheme.

Kuwait. (b) In countries where there are no social security systems.

Lebanon. (c) In Lebanon, cash and medical benefits are provided in a variety of manners to private sector employees, civil servants and members of the armed forces.

Lithuania. Confederation of Lithuanian Entrepreneurs/Employers: (a)-(c) In accordance with the law.

Centre of Lithuanian Trade Unions: Yes to (a)-(c).

Lithuanian Workers' Union: Yes to (a)-(c). (c) Legislation should specify procedures for the terms and payment of benefits.

Luxembourg. (a) If contributions to obligatory social insurance are paid by all workers.

Malaysia. (a) Depending on contract of service.

MAPA: No to (a)-(b) ; yes to (c).

MEF: No to (a)-(b) ; yes to (c). (a) Social insurance should not be compulsory

MTUC: Yes to (a) and (c) ; no to (b). (a) This item should be left to the discretion of employees.

Mali. (a) With contributions from workers and employers.

Mauritius. (a) When such insurance exists. (b) With respect to medical benefits only. (c)  Cash benefits to be defrayed by employer.

MEF: No to (a)-(b) ; yes to (c).

Mexico. (a)-(c) According to the provisions of national law and practice. Cash and medical benefits are generally financed in different ways.

Morocco. FCCIS: Yes to (a) and (c). (b) If possible.

CDT: Yes to (a) and (c).

Mozambique. (a) To guarantee such benefits. (b) In order to cover all women irrespective of their social condition.

OTM: Yes to (c).

Namibia. (a) Cash maternity benefits only, and only for contributing members.

NEF: Yes to (a) and (c) ; no to (b). (b) Special funding is necessary to avoid draining vital resources.

NUNW: Yes to (a)-(c).

Netherlands. (a) On account of the desirability of women participating in the workforce, payment should be made by the social security system rather than by the employer. (b) This possibility must be kept open.

FNV: Yes to (a)-(b). This provision should be included in the Convention. No question was raised about Article 4(8) of Convention No. 103, providing that "in no case shall the employer be individually liable for the cost of such benefits due to women employed by him". Such an article is of crucial importance. Employer liability is a disincentive to employers to employ women of child-bearing age.

New Zealand. (a) Any instrument should specify a standard to be achieved rather than a method of benefit provision. The questionnaire anticipates the provision of social services, and thus income maintenance, based upon a contributory social insurance system. It does not consider whether the use of a taxation funded means tested benefit scheme could equally, or more efficiently, deliver income support to those who are in need of such support. (c) Reference to any specific form of provision of benefits will prevent many countries from ratifying the Convention. The benefits being considered in this questionnaire reflect the provision of social services generally provided in a westernized democracy and ignores the possibility that better overall benefits could well be provided through protection of the right to return to work, with a scheme of supplementary benefits provided through means tested income support provided through general taxation to those in need.

NZEF: (a) No. Various means of implementation should be suggested, not prescribed.

NZCTU: (a)-(c) The Convention should allow for choice between compulsory social insurance and public funds.

Niger. (a) Many countries have no compulsory social insurance scheme. (b) Some States facing economic difficulties cannot meet the costs effectively. (c) Each State in collaboration with the social partners should see how best to ensure the provision of benefits.

Norway. (a)-(c) Under Norwegian legislation, employed women are compulsorily insured and have to pay social security contributions if their earnings exceed a certain amount. The employer also contributes. (c) The individual member State is best placed to decide this issue.

Oman. (b) Not needed if other sources of finance are available.

Pakistan. PNFTU: Yes to (a)-(c). (b) If compulsory social insurance is not available.

Papua New Guinea. (c) As long as the legislation adequately protects women.

Peru. CUT: Yes to (a)-(b). Reference to national law and practice should be dropped. These should be adapted to the provisions of the Convention.

Poland. (a)-(c) The maternity benefit in Poland is financed through social insurance which, so far, has been compulsory for all employees. As of 1 January 1999, sickness and maternity insurance will be compulsory for some people engaged in gainful activity and voluntary for others.

KPP: Yes to (c).

OPZZ: Yes to (c).

Portugal. (a)-(c) In Portugal, maternity protection and medical benefits are financed separately.

CIP: Yes to (c).

CAP: Yes to (c).

CGTP: Yes to (a).

UGT: (a), (b) or (c). This provision should be included in the Convention.

Romania. (c) In accordance with the level of economic development of each country.

National Council of Private Small and Medium-sized Enterprises: Yes to (a)-(c). (b) Only for those categories for whom other social benefits are also ensured through public funds.

CSDR: Yes to (a)-(c).

Slovakia. Confederation of Trade Unions of the Slovak Republic: (b) Quoted benefits should be paid through public funds for selected groups of persons.

South Africa. BSA: (a) The question of equity has to be considered. Any benefit should be part of a holistic social security system based on affordability within a particular country.

Spain. (c) This should be included in the Convention.

CIG: (a) Yes. Public social insurance.

CCOO: Yes to (b).

Sri Lanka. (a) Cash benefits should be provided by the employer, while medical benefits are to be provided by the insurance scheme.

Suriname. ASFA: No to (a)-(b) ; yes to (c).

FAL: Yes to (a) and (c) ; no to (b).

Switzerland. (c) The Convention could include a provision on the financing of benefits.

VSA: (a)-(c) Yes. Alternatively or cumulatively (a), (b) and (c).

Trinidad and Tobago. ECA: Yes to (a) and (c) ; no to (b).

Turkey. TISK: (a)-(c) Allowing the member States as much freedom as possible with regard to the financing of cash and medical benefits will improve implementation. The inclusion in the Recommendation of different methods for providing maternity benefits and the possibility of a combined system would promote a positive attitude to the Convention on the part of member States whose practices still differ in this field. It would also provide a means of observing the most effective practices. Nonetheless, no additional payment obligations must be imposed on employers.

TÜRK-IÔ: No to (a) and (c) ; yes to (b).

United Kingdom. (a) and (b) Subject to national arrangements.

United States. (c) With the understanding that a Member can decide that this can be a discretionary benefit.

USCIB: No to (a)-(b) ; yes to (c).

AFL-CIO: (c) Yes. Provided that an adequate safety net should be in place to ensure that cash and medical benefits are available to all, regardless of funding mechanisms.

Uruguay. National Chamber of Commerce and Chamber of Manufacturers: No to (a)-(b) ; yes to (c).

Venezuela. CTV: Yes to (a) and (c).

Zimbabwe. ZCTU: Yes to (a) and (c). (c) If it can improve on (a) above.

The replies to this question revealed the complexity surrounding the financing of benefits. Subparagraphs (a) and (b) reflect the substance of provisions of Conventions No. 3 (Article 3(c) ) and No. 103 (Article 4 (4)), which specify that cash and medical benefits shall be provided by means of social insurance or public funds. Subparagraph (c) is a new provision which would allow a Member to provide cash and medical benefits in a manner determined by national law and practice.

Subparagraph (c) was included in the questionnaire as an additional method to the two others provided for under Conventions No. 3 and No. 103 to acknowledge the wide variety of ways in which cash and medical benefits are provided at the national level — a point referred to in a number of replies. Under many national systems, cash and medical benefits are provided through separate systems which may, in turn, mix both public and private sources of financing. In addition, as pointed out by one government, different sectors may be covered by separate schemes. Given the complexity of financing arrangements, many replies indicated that individual countries should be permitted to determine the system of financing most suited to their own economic circumstances and level of economic development

Subparagraph (c) was favoured by a wide majority of governments and employers' organizations, and received considerable support from workers' organizations, garnering very few negative replies overall. While subparagraph (c) gained the most support, more than half of the governments which supported subparagraph (c) did so in combination with subparagraphs (a) or (b) ; close to one-third of those supported a choice of all three options. A similar pattern was found in the replies from employers' and workers' organizations, although among workers' organizations, subparagraph (a)  gained somewhat wider support.

The support for subparagraph (a) was quite strong among governments and workers' organizations, and received some support among employers' organizations. The comments reflected that maternity benefits are frequently financed through compulsory social insurance. It was recognized that through such systems, the burden of payment could be equitably distributed, and coverage would be ensured. Those replies that were not in favour pointed out that the level of economic development in some countries could not support a system of compulsory social insurance.

Subparagraph (b) was not supported by a majority of those who replied. However, it did receive substantial support from governments and workers' organizations. This option also relates to Article 4(5) of Convention No. 103 which provides that benefits, in the form of social assistance, paid to women who do not qualify for benefits as a matter of right, shall be paid from social assistance funds. A number of the comments pointed to public funds as an important complementary source of benefits for women workers in need who did not qualify under social insurance, or as a form of social assistance where no social insurance system existed. Accordingly, in nearly every instance in which a government, or employers' or workers' organization supported subparagraph (b), it was in combination with subparagraph (a). Public funding was also raised as a possibility where other funding sources did not exist. Recalling that cash benefits and medical benefits are often funded differently, several replies emphasized that public funds were used to finance medical benefits in their countries.

Given that subparagraphs (a), (b) and (c) received substantial support, the Office drafted Point 19 to allow a choice of any of the methods of financing benefits or a combination of them. The Office acknowledges that a question arises as to the rationale for including subparagraphs (a) and (b) when subparagraph (c) would cover either system of financing. The Office considered it desirable to state these methods in the Recommendation to provide guidance to Members, recognizing at the same time that maternity benefits have commonly been financed through compulsory social insurance systems often supplemented by public funds. Several replies, however, wished- to address the method of financing of benefits in the Convention, rather than in the Recommendation.

A few replies questioned why no provision which would recall Article 4(8) of Convention No. 103 was proposed for inclusion. Article 4(8) provides that in no case shall employers be individually liable for the cost of maternity benefits due to women employed by them. The Office did not propose such a provision in view of the concerns raised that Article 4(8) posed an obstacle to ratification for many countries without developed social security systems. It also took account of the fact that in many countries, maternity benefits are provided through collective agreements or employer-financed arrangements. Given the complexity of the financing schemes, and the degree to which employer contributions are incorporated in national systems, the Office included subparagraph (c) to provide Members with the flexibility necessary to design a financing system for such benefits which would meet their national situation. In this regard, the Office notes that the formulation in Point 18 would not meet the concern expressed by the Government of New Zealand for a taxation-funded means tested benefit scheme rather than an income-replacement scheme on which the present provisions were based. In order to take account of the concerns raised in some replies that allowing individual employer liability could result in discrimination against women, the Conference may wish to consider further parameters or safety nets to ensure that whatever financing system is adopted, it provides effective coverage and would not hamper women's participation in the workforce.
 

Qu. 20

Should any contribution due under compulsory social insurance providing maternity benefits and any tax based upon payrolls which is raised for the purpose of providing such benefits, whether paid both by the employer and the employees or by the employer, be paid by and in respect of the total number of men and women employed, without distinction of sex?

Total number of replies: 98.

Affirmative: 81. Algeria, Angola, Argentina, Australia, Austria, Barbados, Belarus, Belgium, Benin, Botswana, Brazil, Cameroon, Canada, Central African Republic, Chad, Chile, China, Colombia, Comoros, Costa Rica, Croatia, Cuba, Cyprus, Czech Republic, Ecuador, Egypt, El Salvador, Estonia, Finland, France, Germany, Greece, Guyana, Honduras, India, Indonesia, Islamic Republic of Iran, Jamaica, Japan, Jordan, Kenya, Republic of Korea, Kuwait, Latvia, Lebanon, Lithuania, Luxembourg, Mali, Mauritius, Mexico, Republic of Moldova, Mozambique, Namibia, Netherlands, Norway, Oman, Pakistan, Papua New Guinea, Peru, Philippines, Portugal, Romania, San Marino, Slovakia, Slovenia, South Africa, Spain, Suriname, Switzerland, Tajikistan, Thailand, Togo, Trinidad and Tobago, Tunisia, Turkey, Ukraine, United Arab Emirates, United Kingdom, Uruguay, Viet Nam, Zimbabwe.

Negative: 7. Bahrain, Ethiopia, Ghana, Niger, Sri Lanka, Syrian Arab Republic, United States.

Other: 10. Bulgaria, Congo, Denmark, Hungary, Morocco, New Zealand, Nicaragua, Poland, Qatar, Saudi Arabia.

Argentina. On the principle of solidarity.

CGT: Medical insurance must cover all workers, especially with regard to maternity benefits for women workers. Such insurance cover should not be limited due to lack of contributions.

Australia. In order to discourage discrimination on the basis of gender and not to discourage the hiring of women employees, any levy payable by the workplace to finance maternity benefits should not distinguish on the basis of gender.

Azerbaijan. Azerbaijan Trade Unions Confederation: Yes.

Bahrain. This should be left to the legislation and practice in each country.

Belgium. Otherwise, it would be discriminatory.

Bulgaria. National Social Security Institute: No; Ministry of Health: Yes.

Canada. Contributions should be payable by all employees, regardless of sex.

CEC: To be determined by national legislation.

Chile. Practice has demonstrated that distinctions of sex result in discriminatory behaviour towards women workers.

China. It would fairly reflect gender equality and the "equity" principle of social security.

Colombia. On the basis of solidarity.

Congo. These benefits only concern employed women.

Denmark. This detailed rule does not belong in an ILO instrument.

Equal Status Council: Yes.

DA: In compliance with national law.

FTF: Yes.

LO: This provision should be included in the Convention.

Dominica. CSA: Yes.

DAWU: Yes.

DTU: Yes.

WAWU: Yes.

Ecuador. CONAMU: Yes. This contribution should be paid without distinction of- sex, whether it is compulsory or voluntary social insurance to which only the workers contribute. Contributions without distinction of sex should, however, take account of positive discrimination.

Ethiopia. It should be determined by the collective agreements and upon the consensus of the employers and employee.

CETU: Yes. To eliminate gender discrimination.

Finland. TT, LTK and Federation of Finnish Enterprises: No. It should be left up to the individual countries to decide how contributions are determined.

France. CFDT: Yes. Otherwise, there could be a discriminatory effect on women's employment. Enterprises employing a large portion of women workers would be penalized.

CFTC: Yes. To avoid discrimination in hiring.

Ghana. NCWD: Yes.

GEA: Yes.

Honduras. COHEP: No. Payment should be on an equitable basis: government, workers, employers.

Hungary. The burdens of the relevant contributions should be borne without discrimination by the economically active part of society, in accordance with the provisions of national state insurance legislation.

India. National Front of Indian Trade Unions: Compulsory social insurance should include maternity benefits. All employees should be required to contribute their share equally with the employer.

Iraq. General Federation of Trade Unions: No.

Japan. The wording "men and women employed" might be interpreted to include people for whom such systems do not apply for some reason other than distinction of sex. To avoid this, "be paid in respect of... without distinction of sex" should be replaced by "be paid in a manner determined by national law and practice, without distinction of sex".

Lithuania. Unification of Lithuanian Trade Unions: No.

Malaysia. MAPA: No.

MEF: No.

MTUC: Yes. For men, the benefits would be extended to their spouses.

Mali. To avoid discrimination.

Morocco. As well as any contribution based on payrolls and raised to provide such benefits in respect of the number of persons employed.

FCCIS: Yes.

CDT: Yes.

Mozambique. This should be determined in accordance with the conditions in the country, and national legislation as regards social security.

Netherlands. Otherwise employers would be less inclined to employ women. Both male and female employees should be equally obliged to pay contributions.

FNV: This provision should be part of the Convention.

New Zealand. Neither of these options should be included in any instrument as they involve undue prescription of the means of providing benefits.

NZCTU: Yes.

Nicaragua. Should apply in the case of all employees regardless of the type of employment relationship.

Niger. This question should be handled through domestic legislation after consultations among the State, employers and trade unions.

Peru. Otherwise, it would be discriminatory.

Poland. In Poland, social insurance contributions are determined at the same rate for women and men.

KPP: Yes.

OPZZ: Yes.

Portugal. CAP: Yes. This is a social cost that should be borne by everyone.

CIP: The issue of contributions should not be covered in an international text.

UGT: This provision should be included in the Convention.

Qatar. There should be a special fund for maternity insurance financed by married working women's contributions as well as by bodies determined by national legislation or the insurance scheme.

Saudi Arabia. Depending on national legislation.

Sri Lanka. The economic condition of most developing countries does not allow the establishment of a compulsory social insurance scheme.

Switzerland. VSA: Yes. This provision should be included in the Convention.

Syrian Arab Republic. Fully paid maternity leave obviates the need for this.

Togo. If the social insurance scheme renders such contributions obligatory.

United Kingdom. Yes, subject to appropriate conditions for contributing to the social security system and receiving benefits.

United States. This should be strictly left to national law and practice.

AFL-CIO: Yes. Extension of appropriate social benefits for childbirth and maternity is a collective societal responsibility; differentiating between male and female employees for purpose of social insurance taxes discourages employment of women and penalizes employees working in predominantly female jobs and industries.

Uruguay. National Chamber of Commerce and Chamber of Manufacturers: No. In principle, it should not result in an increase in contributions.

Venezuela. CTV: All employed persons of both sexes should contribute.

Zimbabwe. This should be included in the Convention.

A clear majority of replies supported this provision which replicates Article 4(7) of Convention No. 103. It has been retained as Point 19 of the Proposed Conclusions. This Point is intended to ensure that the burden of contribution is borne without distinction of sex, regardless of whether the contribution is due under compulsory social insurance or is paid as a payroll tax, or of whether it is made by employers and workers or by the employer. One government stated that the alternative, a contribution or tax paid only in respect of women workers, could discourage the hiring of women. One government and four workers' organizations proposed that this provision be included in the Convention, whereas two governments and one employers' organization did not wish to see a provision of such detail included in any instrument. It must be recalled that since this Point also relates to the financing of benefits, it has been proposed for inclusion in the Recommendation in keeping with the rationale mentioned in the commentary to the previous question.

Updated by HK. Approved by RH. Last update: 26 January 2000.

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