87th Session |
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Report V(2) |
Maternity protection at work |
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Revision of the Maternity Protection Convention (Revised), 1952 (No. 103), and Recommendation, 1952 (No. 95) |
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Qu. 21 |
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When a woman is applying for employment, should employers be prohibited from requiring a test for pregnancy or a certificate of such a test, except for work which under national laws or regulations is prohibited or restricted for pregnant or nursing women or which is prejudicial to the health of the woman and child? |
Total number of replies: 103.
Affirmative: 87. Algeria, Angola, Austria, Belarus, Belgium, Benin, Botswana, Brazil, Cameroon, Canada, Central African Republic, Chad, Chile, Colombia, Comoros, Costa Rica, Croatia, Cuba, Cyprus, Czech Republic, Denmark, Ecuador, Egypt, El Salvador, Estonia, Ethiopia, Finland, France, Germany, Greece, Honduras, Hungary, India, Islamic Republic of Iran, Italy, Jordan, Kenya, Republic of Korea, Kuwait, Latvia, Lebanon, Lithuania, Luxembourg, Malaysia, Mali, Mauritius, Mexico, Republic of Moldova, Morocco, Mozambique, Namibia, Netherlands, New Zealand, Nicaragua, Oman, Pakistan, 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, Thailand, Togo, Trinidad and Tobago, Tunisia, Turkey, Ukraine, United Arab Emirates, United Kingdom, United States, Uruguay, Venezuela, Viet Nam.
Negative: 10 Argentina, Australia, Bahrain, Guyana, Indonesia, Jamaica, Niger, Papua New Guinea, Tajikistan, Zimbabwe.
Other: 6. Bulgaria, Congo, Japan, Ghana, Myanmar, Norway.
Angola. Pregnancy must not constitute grounds for discrimination.
Argentina. Although such a measure would be appropriate, it would discourage employers from hiring women.
CGT: A requirement for such tests is discriminatory and should carry sanctions under labour legislation.
Australia. Such a provision should prohibit discrimination on the basis of the manner in which the test is required, or how the result of the test is used, rather than hinge on the mere fact of the test being conducted. Many workplaces require potential employees to have a medical examination prior to being permanently appointed. That medical examination may include a pregnancy test to enable accurate interpretation of the test results. Where the test is taken with the employee's informed consent and done for bona fide purposes, it would be unnecessary to penalize the employer.
ACTU: Yes.
Austria. The prohibition of pregnancy testing should also be guaranteed in respect of activities which may be damaging to health. It would be desirable to strive for compulsory notification by the employer of work involving health risks.
Azerbaijan. Azerbaijan Trade Unions Confederation: Yes.
Bahrain. The employer may require the working woman to undergo a medical examination to ensure her safety and protection during pregnancy.
Belgium. The case of fixed-term or temporary employment should, however, be considered.
Botswana. To protect women against possible discrimination in employment.
Bulgaria. Ministry of Labour and Social Policy: No; Ministry of Health: Yes.
Canada. The provisions could be widened to cover all types of discrimination on the basis of pregnancy.
CLC: Yes. No mandatory pregnancy tests under any conditions. Women should not be denied employment because of pregnancy.
Central African Republic. The prohibition should be accompanied by a sanction.
Chile. There should be no exceptions to the prohibition.
CPC: As long as legislation ensures that pregnancy does not become a burden for employers.
Colombia. These are discriminatory and unacceptable acts.
Comoros. To ensure equality of opportunity and treatment.
Congo. The requirement of such a certificate should be limited to work involving a risk to the health of the woman or child. The protected period should cover the pregnancy and up to the end of nursing.
Czech Republic. UZS „R: No. The employer has the right to know an employee's state of health when taking her into employment.
„MK OS: Yes. With respect to work that is harmful to the health of the woman and child, the Recommendation should state that the range of such work will be directly restricted in national legislation.
Denmark. DA: Such prohibition should not be covered by rules on maternity leave.
FTF and LO: This text should be included in the Convention.
Dominica. CSA: Yes.
DAWU: Yes.
DTU: Yes.
WAWU: Yes.
Ecuador. CONAMU: Employers should be prohibited from requiring a test for pregnancy, irrespective of the work the woman seeks to do.
El Salvador. Such a test would be prudent in the event of any serious risk to the life or health of a woman or her child.
Ethiopia. Such testing constitutes discrimination among sexes in employment.
CETU: Such testing violates the working rights of women.
Finland. Requiring a test may lead to discrimination against women. It also violates the privacy of women. It is important to ensure that potential mothers are not discriminated against in recruitment situations.
TT, LTK, Federation of Finnish Enterprises and KT: No. There are also other situations where it is acceptable to ask information about the applicant's possible pregnancy, such as jobs where it is essential that the same worker works for a longer period of time.
SAK, STTK and AKAVA: Even asking about possible pregnancy in the recruitment situation is discriminatory.
France. It would be preferable not to provide exceptions. The French Government wished to strengthen the protection of pregnant women by establishing the general principle of non-discrimination in hiring. An employer cannot seek any information concerning the pregnancy of a jobseeker. The occupational physician is the sole authority competent to determine whether a pregnant woman may perform a job.
CFDT: Yes. Exceptions should be permitted after consultation with the social partners.
CFE-CGC: Yes. Legislative measures should prohibit direct or indirect inquiry regarding the possible pregnancy of a female candidate for a job.
CFTC: Yes. Restrictions should not be discriminatory.
Germany. Risks to the health of mothers and children must be dealt with in maternity protection legislation to ensure that the exception referred to in the question is clearly defined.
DAG: Yes. Exactly which types of work are "prejudicial" must be determined in legislation.
Ghana. Employers should be prohibited from requiring such tests.
NCWD: Yes.
TUC: Such testing is discriminatory.
Guyana. It is unfair to compel the employer to employ a pregnant woman.
India. If in accordance with national laws, such a prohibition would respect the dignity of women and safeguard the principles of maternity protection as a condition for equality and non-discrimination.
Bharatiya Mazdoor Sangh: No. When woman applies for employment, the employer may require a test of pregnancy on condition that employment will not be refused on the grounds of pregnancy. In cases of labourious or hazardous work, employment can be postponed.
National Front of Indian Trade Unions: Permitting such tests is beneath the dignity of women and against the principles of maternity protection as a condition for equality and non-discrimination. However, when national laws prohibit the employment of pregnant women in some trades, they will remain operative.
Iraq. General Federation of Trade Unions: Yes.
Italy. CONFINDUSTRIA: Should be handled through collective bargaining or national legislation.
Jamaica. This would lead to employers selecting more males over females for employment.
JEF: Tests should be done only if necessary.
Japan. Consensus needs to be reached in each country about what specific actions should be prohibited at the time of recruitment or commencement of employment for reasons such as pregnancy or childbirth. Such prohibitions should be determined in accordance with the actual situations, which differ from country to country, or by the content of the employees' work. There should not be a provision in the Recommendation that applies to all countries uniformly.
JTUC-RENGO: This provision should be included in the Convention.
Jordan. Amman Chamber of Industry: No. Employers should be aware of the married woman's health.
Kenya. Such tests would amount to discrimination on account of sex.
Republic of Korea. It should be prohibited without fail.
KEF: No.
Lebanon. National laws should determine the kinds of work that are considered prejudicial to the health of the woman and child.
Malaysia. MAPA: No.
MEF: No. The employer should be free to hire any person of his choice, based on conditions as determined by the employer.
MTUC: No. Expecting mothers should not be discriminated against in hiring.
Mali. Pregnancy should not be a source of discrimination.
Morocco. This provision should be included in the Convention.
FCCIS: Depending on the sector.
Myanmar. Under national rules and regulations, a pregnant worker may not be hired for a job requiring heavy physical effort. When no heavy physical effort is required, a pregnant woman who is within four months of confinement may be selected for the post, but cannot start until six weeks after childbirth.
Namibia. NEF: Yes. Such testing would violate the United Nations Convention on the Elimination of all Forms of Discrimination against Women (CEDAW) and Convention No. 111 concerning discrimination in respect of employment and occupation.
New Zealand. Asking questions about pregnancy, birth control or family planning at job interviews may indicate an intention to discriminate. It would be useful to note whether any other laws or regulations may lead to unintentional discrimination.
NZEF: A safe and healthy workplace must be maintained for all employees.
Niger. Since pregnancy is temporary, it should in no case constitute an obstacle to the candidacy of a woman for a job.
Norway. National law does not entitle the employer to require a prospective employee to take a pregnancy test prior to appointment. Norwegian case law has, however, provided that pregnancy can be given weight in the context of temporary appointments.
Peru. National legislation provides that offers of employment and access to training opportunities cannot contain requirements that constitute discrimination, annulment or alteration of equality of opportunity or treatment.
Philippines. Requiring a test for pregnancy or a certificate of such a test for female job applicants is a discriminatory act against women.
Poland. KPP: No.
Portugal. Requiring a pregnancy test or a certificate thereof is not the only way to avoid risks in such situations. It can lead to discrimination against pregnant women in their access to employment. Such a possibility will only be acceptable if the employment contemplated is temporary.
CIP: No. Excessive protection could have adverse effects.
Romania. The establishment of general national criteria pertaining to access to employment should respect equality of opportunity between men and women. At the same time, it should not hinder the right of employers to ensure the enterprise's productivity.
National Council of Private Small and Medium-sized Enterprises: Yes. Such a requirement on the part of an employer would be discriminatory.
Slovakia. To secure equality of opportunity for women.
South Africa. BSA: It would not be fair to impose the financial burden and inconvenience upon an employer of a new staff member taking maternity leave.
Spain. Such practices would be prohibited on the principle of non-discrimination in employment.
Suriname. FAL: No.
Sweden. An employer should be forbidden to require a pregnancy test at the time of hiring. However, the employer should, if hiring a pregnant woman, inform her about work which can entail a pregnancy hazard (to the mother or the embryo).
Switzerland. Such practices would constitute discrimination in hiring.
Syrian Arab Republic. A woman should not be deprived of her right to work or the possibility of choosing the appropriate type of work due to pregnancy or nursing.
Togo. To avoid discrimination.
Trinidad and Tobago. NATUC: No. This would inhibit the employer in the process of planning for the business.
Turkey. TISK: No.
United Kingdom. Such practices would amount to sex discrimination under national legislation.
United States. Under federal law, an employer is not per se prohibited from asking questions of applicants about pregnancy, but an employer may not discriminate against applicants for employment on the basis of pregnancy or pregnancy-related medical conditions. Pre-- employment inquiries or tests which treat pregnancy-related conditions in the same manner as other temporary medical conditions are legally permissible, as long as they relate to an applicant's ability to perform a job. An employee's pregnancy can only be a consideration regarding employment decisions when the employer can show that non-pregnancy is a "bona fide occupational qualification" that is reasonably necessary to the normal operation of that particular business or enterprise. This business defence is legally limited only to situations where "sex or pregnancy actually interferes with the employee's ability to perform the job".
USCIB: Yes, but with no exceptions.
Uruguay. National Chamber of Commerce and Chamber of Manufacturers: No.
Zimbabwe. ZCTU: Yes.
The vast majority of replies from the tripartite constituents supported this provision which corresponds to Point 21 of the Proposed Conclusions. There is no similar provision in Convention No. 103 or Recommendation No. 95. This issue was raised in the questionnaire because of concerns expressed in some member States and in the Committee of Experts reporting on the Application of the Discrimination (Employment and Occupation) Convention, 1958 (No. 111).
Many of the replies saw the requirement of a pregnancy test as discriminatory, and one reply questioned whether such a test did not violate a woman's right to privacy. Most replies noted that the prohibition would not apply, when the work has been restricted under national law for pregnant and nursing women because the duties are deemed prejudicial to the health of the woman and child. A few replies voiced the opinion that an employer should be prohibited from requiring a pregnancy test under any condition. Instead, it was suggested that the employer be required to notify workers and job applicants of the health risks that could be posed by the job duties, especially with respect to pregnancy and nursing, and to ensure a healthy workplace for workers of both sexes. Several replies suggested including this Point in the Convention.
Some replies suggested adding other prohibitions, such as asking questions
about pregnancy, birth control, or family planning at interviews. However, the
Office did not feel that there was sufficient consensus to add these. Considering
the interest expressed in the replies to Question 12(2) and in order to address
the need for specific measures to prevent discrimination, a new phrase, "to
ensure that maternity does not constitute a source of discrimination in employment,
measures adopted should include" has been added to the beginning of Point
21. The formulation in Point 21 leaves open the possibility of including
other measures to eliminate discrimination in employment.
Qu. 22(1) |
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Should a woman be entitled to return to her former position or a similar one at the end of her maternity leave? |
Total number of replies: 104.
Affirmative: 102. Algeria, Angola, Argentina, Australia, Austria, Bahrain, Barbados, Belarus, Belgium, Benin, Botswana, Brazil, Bulgaria, 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, Myanmar, Namibia, Netherlands, New Zealand, Nicaragua, Niger, Oman, Pakistan, Papua New Guinea, Peru, Philippines, Poland, Portugal, Qatar, Romania, Russian Federation, San Marino, Saudi Arabia, Seychelles, Slovakia, Slovenia, South Africa, Spain, Sri Lanka, Suriname, Sweden, Switzerland, Syrian Arab Republic, Tajikistan, Thailand, Togo, Trinidad and Tobago, Tunisia, Turkey, Ukraine, United Arab Emirates, United Kingdom, United States, Uruguay, Viet Nam, Zimbabwe.
Other: 2. Japan, Norway.
Argentina. CGT: And her wages should be maintained.
Australia. A return to the same position whenever possible.
Austria. There is little point to such a provision if the employment protection in Question 12 is granted for a certain period beyond the end of maternity leave.
Azerbaijan. Azerbaijan Trade Unions Confederation: Yes. To her former position.
Bahrain. Confinement and maternity leave should not affect the nature of a woman's work, her contract or its conditions, except where necessary and on the basis of a medical certificate.
Belgium. Maternity should not serve as a basis for changing the essential conditions of the employment contract.
Brazil. CNC and CNI: No.
Canada. In Canada, an employee is usually also entitled to the same wages and benefits accrued prior to the leave.
CEC: Yes. However, within the context of the enterprise. What is most important is that there should be fair treatment.
CLC: Yes. With no loss of benefits or seniority.
Central African Republic. The employer's refusal would be equivalent to a substantial modification of the employment contract.
Chile. The woman worker should suffer no setback on account of maternity.
CPC: If she meets the physical and mental requirements that formed the basis of her contract and if the position exists.
China. This is the basic content of employment protection and concrete measures that reflect equal rights for women in employment.
Comoros. If her health condition permits, otherwise to a similar post.
Congo. To her former position.
Cuba. To her former position.
Cyprus. This should be transferred to the Convention.
Czech Republic. UZS „R: Yes.
Denmark. The job should be considered as being of similar quality to the one she left before the maternity leave.
FTF: This provision should be transferred to the Convention.
LO: This provision should be transferred to the Convention.
Dominica. CSA: Yes.
DAWU: Yes.
DTU: Yes.
WAWU: Yes.
Ecuador. To her former position.
CONAMU: Yes. Without any change to her remuneration.
UGTE: Yes. As long as the activity is not prejudicial to the mother or child.
El Salvador. Provided her relationship with the newborn child is not compromised.
Ethiopia. CETU: Yes. Unless it is dangerous to her health.
Finland. TT, LTK and Federation of Finnish Enterprises: As far as it is possible.
France. CFE-CGC: Yes. Reservations regarding the return to a similar position.
Germany. Ensuring the possibility of a return to at least an equivalent post is part of the prohibition of discrimination.
Honduras. Otherwise, this would constitute a change in her conditions of work.
Hungary. The woman's job shall only be altered with her consent by modification of the work contract by mutual consent.
India. AITUC: Yes. This is an essential element of maternity protection.
Bharatiya Mazdoor Sangh: Yes. During pregnancy, alternative work is given to woman to protect her health. At the end of maternity leave, she should be entitled to her former position.
National Front of Indian Trade Unions: Without affecting rank and wages.
Indonesia. As mentioned in Recommendation No. 95, Paragraph 4(3).
Islamic Republic of Iran. Unless it is harmful to her health.
Iraq. General Federation of Trade Unions: Yes.
Italy. CONFINDUSTRIA: Should be handled through collective bargaining or national legislation.
Jamaica. JEF: Yes, but this provision should be limited to two pregnancies.
Japan. This question should be determined by each Member.
NIKKEIREN: No. The former job may disappear or be greatly transformed due to rapid technological innovation. It is difficult to decide what is similar to the former job.
JTUC-RENGO: Yes.
Lebanon. A woman's absence on maternity leave does not render that position vacant. However, when leave is extended to an extent prejudicial to the proper functioning of the work, the enterprise should be allowed to find her a similar position.
Lithuania. Confederation of Lithuanian Entrepreneurs/Employers: Yes. Otherwise the State must compensate for the loss.
Luxembourg. The right to re-employment should be included in the Convention.
Mali. Unless contrary to medical advice.
Mauritius. The interruption is temporary, similar to annual or sick leave, and should be treated as such.
Morocco. CDT: According to the possibilities of the enterprise.
Mozambique. Unless there are clinical reasons to the contrary. There should be no change in the wage paid.
OTM: Except when it is impossible due to a physical condition resulting from the confinement.
Myanmar. To ensure employment rights regarding promotion, pension, bonus and gratuity.
New Zealand. In the event that a Recommendation is adopted, the Convention should support the policy of providing protection for staff on parental leave, including the right to return to work. Member States should specify how this provision is implemented under national laws and regulations. Member States should be free to specify exceptions where a general presumption exists on the right to return to a former position, or a similar one. Such exceptions might include a redundancy situation, dismissal for cause unrelated to pregnancy or leave, refusal by the employee of the job that is offered, or when the employee takes leave to which she is not entitled. Any instrument should be capable of sustaining the rights of member States to indicate the situations where dismissal can occur.
Nicaragua. In the same post and in identical conditions.
Norway. Under national law, she returns to work in her former position after maternity leave.
Peru. CUT: Without reduction in earnings.
Philippines. Maternity protection includes not only the right to maternity leave and the right to benefits, but also the right to job security during the prescribed periods.
Poland. Polish labour law provisions meet these requirements.
KPP: If possible.
Portugal. To return to work in the same position or in a similar one is an essential prerequisite of the entitlement to maternity leave. It necessarily results from the Convention.
CIP: No.
UGT: This provision should be included in the Convention. The same remuneration should be maintained.
South Africa. BSA: Yes. Unless she has taken additional leave, in which case it should be left to collective bargaining or whatever is practical. SMEs require special attention.
Spain. This provision could be included in the Convention under employment protection.
CCOO: Yes. Her former position.
Sri Lanka. This is required to provide for employment security.
Switzerland. The term should be "equivalent" post rather than a "similar" one.
Syrian Arab Republic. The Convention must clearly stipulate that the position is to be retained till the end of maternity leave.
Togo. Unless the doctor recommends otherwise.
Trinidad and Tobago. NATUC: Yes. Otherwise, a woman would be penalized as a result of pregnancy.
Turkey. TISK: No. An approach inconsistent with employment conditions, which restricts the employer's actions regarding the permanence of the employment contract, would be unrealistic.
United Kingdom. Women would be deterred from taking their entitlement to maternity leave if there was the possibility that they could lose their job, status or pay.
United States. AFL-CIO: Without this assurance, the leave guarantee will be meaningless. The only reason for termination or demotion while on maternity leave should be a business necessity.
Uruguay. National Chamber of Commerce and Chamber of Manufacturers: Yes. As long as the same level of working capabilities is maintained.
Venezuela. CTV: To her former position.
Zimbabwe. Should even be promoted as per entitlement.
The right envisioned by this question, a woman's entitlement to her former position or a similar one at the end of maternity leave, obtained overwhelming support from the tripartite constituents. This right was included in Paragraph 4(3) of Recommendation No. 95. Several replies emphasized that this is an essential element of maternity protection. The wording proposed has therefore been included in Point 20 of the Proposed Conclusions.
A number of replies asserted that a woman should be entitled to return to
her former position, since maternity should not serve as a basis for changing
the essential conditions of employment. Others affirmed that temporary absence
on maternity leave should be treated similarly to other temporary absences such
as annual or sick leave. Many replies, however, recognized that there might
be circumstances in which it would not be possible for a woman to return to
her former position, for example, when the job would pose a danger to the woman's
health or when the length of her absence was extended so that it was prejudicial
to the completion of the work. Point 20 takes account of such situations
providing that a woman would be entitled to her former position or a similar
one. Two governments proposed the word "equivalent" as an alternative
to the word "similar".
Qu. 22(2) |
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Should the period during which the woman is on maternity leave be considered as period of service for the determination of her rights? |
Total number of replies: 104.
Affirmative: 98. Algeria, Angola, Argentina, Austria, Bahrain, Barbados, Belarus, Belgium, Benin, Botswana, Brazil, Bulgaria, Cameroon, Canada, Central African Republic, Chad, Chile, China, Colombia, Comoros, Congo, Costa Rica, Croatia, Cuba, Cyprus, Czech Republic, Ecuador, Egypt, El Salvador, Estonia, Ethiopia, Finland, France, Germany, Ghana, Greece, Guyana, Honduras, Hungary, India, Indonesia, Islamic Republic of Iran, Italy, Jamaica, Jordan, Kenya, Republic of Korea, Kuwait, Latvia, Lebanon, Lithuania, Luxembourg, Malaysia, Mali, Mauritius, Mexico, Republic of Moldova, Morocco, Mozambique, Namibia, Netherlands, Nicaragua, Oman, Pakistan, Papua New Guinea, Peru, Philippines, Poland, Portugal, Qatar, Romania, Russian Federation, San Marino, Saudi Arabia, Seychelles, Slovakia, Slovenia, South Africa, Spain, Sri Lanka, Suriname, Sweden, Switzerland, Syrian Arab Republic, Tajikistan, Thailand, Togo, Trinidad and Tobago, Tunisia, Turkey, Ukraine, United Arab Emirates, United Kingdom, United States, Uruguay, Venezuela, Viet Nam, Zimbabwe.
Other: 6. Australia, Denmark, Japan, Myanmar, New Zealand, Norway.
Australia. The rights referred to must be defined. Australia would support the provision if rights represent continuity of service but not the accrual of entitlements.
ACTU: Yes.
Austria. BAK: Yes. Interruption of work is one of the most important reasons for discrimination against women in matters of promotion and remuneration.
Azerbaijan. Azerbaijan Trade Unions Confederation: Yes.
Bahrain. Maternity leave is an integral part of her period of service.
Belgium. Maternity leave in the strict sense of the term.
Brazil. CNC and CNI: No.
Canada. CEC: Yes. When possible.
Central African Republic. Otherwise it would be discriminatory.
Chile. For all legal purposes, this time must be considered as a period of full service.
China. Childbirth should be regarded as social labour. Maternity leave does not mean the termination of employment, but a process of recovery and preparation for work.
Colombia. Should be considered as a period of service for all purposes associated with legislation governing benefits.
Comoros. In conformity with national legislation.
Cyprus. This important stipulation should be transferred to the Convention.
Denmark. The woman should maintain her accrued rights.
DA: This should not be included in the instrument.
Dominica. CSA: Yes.
DAWU: Yes.
DTU: Yes.
WAWU: Yes.
Ecuador. The woman worker must maintain the same entitlements to which she was entitled prior to pregnancy.
UGTE: Yes. All rights should be retained.
Ethiopia. Since maternity leave is legally paid leave, it is considered as a period of service.
Finland. With possible exceptions due to national conditions.
TT, LTK, Federation of Finnish Enterprises and KT: No. According to many collective agreements, certain rights and benefits are based on the amount of experience the worker has, which is only obtained by working. Maternity leave cannot always be considered as period of service.
France. French legislation only considers maternity leave as a period of service for the determination of seniority rights and of paid leave.
CNPF: No.
CFDT: Yes. With regard to seniority and pension rights.
CFTC: Yes. Otherwise, there would be discrimination between men and women.
CGT-FO: Yes. Notably for old-age pension rights.
Ghana. Otherwise a woman would be deprived of benefits.
TUC: Yes. Otherwise it would be discriminatory.
Honduras. COHEP: This would constitute discrimination with regard to entitlements.
Indonesia. APINDO: No.
Iraq. General Federation of Trade Unions: Yes.
Italy. CONFINDUSTRIA: Should be handled through collective bargaining or national legislation.
Jamaica. JEF: Yes. But limited to two pregnancies.
Japan. Yes with regard to rights relating to minimum working conditions. However, for the determination of other rights, the matter should be determined by each Member in accordance with the nature of each right and that country's situation.
NIKKEIREN: No.
JTUC-RENGO: Yes.
Jordan. General Federation of Jordanian Trade Unions: No.
Malaysia. MTUC: Yes. Maternity leave is paid leave. The period of service is continuous.
Mauritius. MEF: No. If less than 12 months' continuous service.
Myanmar. Maternity leave is considered as a period of service.
Netherlands. FNV: Article 11(2)(b) of the CEDAW reads: "To introduce maternity leave with pay or with comparable social benefits without the loss of former employment, seniority or social allowances".
New Zealand. Any instrument adopted should, at a minimum, provide for service to be deemed unbroken when any person takes parental leave. Whether the period of parental leave should count as service should be addressed under national laws and practices. Not allowing the service entitlement of an employee to accumulate while on parental leave may create a disincentive to take such leave, and lead to inequalities in the wages and conditions of employment of those employees who take parental leave.
NZCTU: Yes.
Nicaragua. With regard to rights relating to length of service, leave and thirteenth month.
Norway. Absence due to maternity leave should not be taken into account when considering continuity of employment.
Philippines. When a woman is on maternity leave, she is still a bona fide employee and should be entitled to the full rights and privileges accorded to such.
Portugal. CIP: No.
UGT: The period of absence should be considered as a period of effective employment for all purposes.
South Africa. Maternity leave is temporary and does not differ from other types of permitted leave of absence.
BSA: Provided the period is limited to the stipulated 12 weeks. For additional periods of leave, it should be left to individual collective bargaining.
Suriname. FAL: No.
Sweden. Parental leave should be equated with length of service in the computation of social benefits, pension rates, redundancy status, etc.
Syrian Arab Republic. Without prejudicing her rights.
Togo. Rights including seniority and promotion.
Turkey. TISK: No. The period during which a woman is on maternity leave may be considered as a period of service for the determination of her rights, but the varying practices of the member States regarding leave should be borne in mind in this context. Relating the periods of leave, which can be up to six months depending on national legislation, to all of the other rights of workers could lead to a situation where the long rest periods in question become a burden for the undertaking.
United Kingdom. For the minimum maternity leave period set down in the Convention, a woman should not lose her rights. However, where there is further absence, the rules should be considered separately, otherwise it could deter employers from offering more favourable contractual maternity rights.
United States. AFL-CIO: Rights, such as vacation time, seniority and pensions, should continue to be accrued while a woman is on maternity leave. At a minimum, accrual of rights and benefits during periods of maternity leave should be treated no differently than accrual of rights and benefits during periods of sickness, disability or work-related injury.
An overwhelming majority of governments as well as employers' and workers' organizations were in favour of considering the period during which a woman is on maternity leave as a period of service for the determination of her rights. This provision goes further than Paragraph 4(3) of Recommendation No. 95 which provides that a woman's seniority rights should be preserved during maternity leave.
Several replies questioned whether the period of maternity leave would be considered as part of woman's period of service for the determination of all her rights, given that, under some national systems, not all rights that accrue with time in service accrue during a woman's maternity leave. Other replies asserted that the leave period should be considered as a period of service for all purposes. Some of the rights mentioned were seniority, social benefits, pension rights, vacation, promotion, and redundancy status. One workers' organization emphasized that absence during maternity leave should not be treated less favourably than absence due to sickness, temporary disability, or work-related injury.
Point 20 of the Proposed Conclusions has been drafted in view of the support received. The wording "be considered as a period of service for the determination of her rights" is intended to support the principle that a woman should not be penalized for the time she must take for maternity leave.
While the Office acknowledges the variety of rights which are provided for under national systems, there was insufficient support in the replies to limit Point 20 in the manner suggested.
Health protection
Qu. 23 |
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Should the employment of a woman on work prejudicial to her health or that of her child, as defined by the competent authority, be prohibited during pregnancy and up to three months after childbirth and longer if the woman is nursing her child? |
Total number of replies: 102.
Affirmative: 87. Algeria, Argentina, Australia, Austria, Bahrain, Barbados, Belarus, Belgium, Benin, Botswana, Brazil, Bulgaria, Cameroon, Canada, Central African Republic, Chad, Chile, China, Colombia, Comoros, Costa Rica, Croatia, Cuba, Cyprus, Czech Republic, Denmark, Ecuador, Egypt, El Salvador, Estonia, Ethiopia, Germany, Ghana, Guyana, Honduras, Hungary, India, Islamic Republic of Iran, Italy, Jamaica, Japan, Jordan, Kenya, Republic of Korea, Kuwait, Latvia, Lithuania, Luxembourg, Malaysia, Mali, Mauritius, Republic of Moldova, Morocco, Mozambique, Nicaragua, Niger, Oman, Pakistan, Peru, Philippines, Portugal, Qatar, Romania, Russian Federation, San Marino, Seychelles, Slovakia, Slovenia, South Africa, Spain, Sri Lanka, Suriname, Sweden, Switzerland, Syrian Arab Republic, Tajikistan, Thailand, Togo, Trinidad and Tobago, Tunisia, Turkey, Ukraine, United Arab Emirates, Uruguay, Venezuela, Viet Nam, Zimbabwe.
Negative: 4. Namibia, Netherlands, Papua New Guinea, United States.
Other: 11. Congo, Finland, France, Greece, Lebanon, Mexico, Myanmar, New Zealand, Norway, Saudi Arabia, United Kingdom.
Argentina. CGT: Such a prohibition should not be subject to any exceptions.
Australia. Prohibitions must be exercised with caution, given their potential for discrimination. Flexibility should be maintained for consideration on a case-by-case basis. If necessary, an external, competent authority should determine work which is inappropriate. Employers and employees should follow guidelines developed by the competent authority detailing dangerous occupations and the effects they may have on a pregnant woman or child.
ACTU: The employer should not have the discretion to determine whether or not the work is prejudicial to the woman's health. This should be independently determined by an objective authority.
Austria. A paragraph regarding health protection should be included in the Convention. Furthermore, a ban on night work and overtime should be clearly spelled out in the Recommendation (as in Article 5(1) of Recommendation No. 95).
Azerbaijan. Azerbaijan Trade Unions Confederation: Yes.
Belgium. The Recommendation should make clear that the woman concerned cannot be removed from employment.
CNT: The instrument(s) should leave the regulation of these questions to member States to handle on the basis of their national culture. The European Directive has adopted an approach to safety and health for workers during pregnancy and nursing based on risk analysis and the proposal of alternatives in the event of recognized risks.
Brazil. Individual medical appraisal must be taken into account. Medical literature recommends that pregnant and nursing women be removed from risks to the normal development of the pregnancy, risks to the foetus and risks related to nursing. This safeguards the rights of the child.
CNC and CNI: No. Such prohibitions must be based on a medical certificate.
CNF: By law.
Cameroon. Yes, for the protection of the child.
Canada. Prohibiting access to certain occupations during pregnancy is only workable in very dangerous occupations. There may be other occupations which, because of circumstances, pose as much risk to the woman or her child. A better approach could be to provide modification of job duties, reassignment to another job or, as a last resort, a leave of absence in situations where employment may pose a risk.
CLC: Work should be modified or the woman reassigned. If this is not possible, paid leave should be made available.
Central African Republic. The duration should be determined by a doctor.
Chile. Enterprises where hazards may be encountered must be obliged to inform their women workers of the risks involved.
China. The prohibition should last up to one year after childbirth.
Colombia. Legislation should specify posts deemed to be risky and should be periodically updated.
Congo. See Question 21.
Cyprus. To be transferred to the Convention.
Denmark. DA: Such provisions should not be included in such an instrument.
Dominica. DAWU: Yes.
DTU: Yes.
WAWU: Yes.
Ecuador. The problem of women who need to work must be considered.
CONAMU: The pregnant woman's right to employment should be protected by the international Convention, which should prevail over national legislation.
Egypt. This prohibition is not related only to the maternity period.
Federation of Egyptian Industries: Yes. In accordance with the categories of work defined under Egyptian law where the employment of women is prohibited because of the prejudicial nature of the work to women.
Egyptian Trade Union Federation: Yes. The prohibition of such prejudicial work should not be confined only to the period of pregnancy, childbirth or nursing.
Ethiopia. The period defined as "after childbirth and longer" is ambiguous.
Finland. Such work should be prohibited, if no other work can be arranged for the worker that is not prejudicial to the development of the foetus or to the pregnancy or to the health of the mother and the child after the birth. The length of a possible prohibition should be based on the nature of employment and the medical condition of the worker. The mere fact that a woman is nursing her child may be problematic, if no time limit is set.
France. See Question 24.
CFDT: Yes.
CFE-CGC: Yes.
CFTC: Yes.
CGT-FO: Yes.
Germany. For non-nursing mothers, prohibition of employment following the end of the maternity protection period is not necessary in all cases, but may be necessary, depending on the mother's ability to work, as stated in a doctor's certificate, during the months immediately after the birth.
DAG: See Question 21.
Ghana. Work that is injurious to the health of a pregnant woman or that of her child should be discontinued.
Greece. Determining the types of work which should be prohibited is neither easy nor, perhaps, just. It would be better to draw up a non-exhaustive list of agents and working conditions recognized by the competent authority as dangerous. The employer would be obliged to keep a written report on the exposure of women workers to these agents. The report would be established by specialists in occupational safety and health (safety technicians and doctors).
Honduras. This should be prohibited both in the Convention and in domestic legislation.
India. AITUC: Yes. The provisions of Recommendation No. 95 should be further elaborated and fortified.
National Front of Indian Trade Unions: It should be decided by national law.
Indonesia. APINDO: Yes.
Iraq. General Federation of Trade Unions: Yes.
Jamaica. JEF: No.
Japan. The phrase "prejudicial to her health or that of her child" should be replaced by "prejudicial to pregnancy, childbirth, nursing, etc.".
NIKKEIREN: The nursing period must be clarified.
Lebanon. The duration of such prohibition should be determined by the competent authority.
Luxembourg. The prohibition of dangerous work should be included in the Convention.
Malaysia. MAPA: No.
MEF: Yes. During the period of prohibition from work the employee should not be entitled to any wages from the employer.
Mali. Not merely prohibited, but strongly sanctioned.
Mauritius. The Recommendation may list working conditions considered prejudicial to her health and that of her child.
Mexico. The Recommendation should contain a provision which states that "national legislation or the competent authority should determine which tasks or work are prejudicial to the health of a woman or her child, both during pregnancy and when nursing". The prohibition should not be subject to a fixed period of time, but rather to the tasks to be performed by the pregnant woman. Provisions relating to safety and health in the workplace should be included in the Convention, rather than the Recommendation.
Myanmar. Should be considered for special cases. Our service rules and regulations provide protection from work requiring heavy physical effort; during pregnancy and for six weeks after childbirth.
Namibia. Should be covered under occupational health and safety.
NEF: Yes.
Netherlands. With the exception of specific prohibitory provisions which apply to all employees, the following formulation is preferred: "A pregnant employee cannot be obliged to ...". This formulation was chosen with a view to ensuring that the position of women within the labour market is as equal as possible to that of men.
FNV: A paragraph should be added to the Recommendation regarding the need to take measures for compulsory risk assessment and risk evaluation by the employer.
New Zealand. A woman should not engage in work that is prejudicial to her health, or the health of her children, for such a period during the pregnancy and after childbirth as is considered necessary. Temporary transfer or leave may be provided due to health concerns related to the position.
NZEF: National legislation requires employers to maintain a safe and healthy working environment. It would not be lawful for any employer knowingly to employ a pregnant woman in any situation which would be dangerous to herself or her child. No employee, male or female, should be exposed to any hazard. Employers are required to identify actual or potential hazards and, where hazard elimination or minimization is not possible, appropriate safety precautions must at all times be taken.
NZCTU: Consideration may need to be taken of work prior to pregnancy that may be prejudicial to the health or ability of a woman to get pregnant.
Norway. National regulations require the employer to make an assessment of whether factors in the working environment may involve a risk of reproductive damage. Pregnant and nursing women may under no circumstances be assigned to work involving such a risk. Violations are punishable.
Papua New Guinea. With the certification of a competent medical practitioner.
Peru. CUT: As long as the woman can carry out other activities, as foreseen in Question 24. Otherwise, such a provision could be discriminatory.
Philippines. Greater attention to safety and health could include transfer to less tiring work.
Poland. KPP: Yes.
OPZZ: Yes.
Portugal. Protection for mother and child on work prejudicial to health is a fundamental obligation and must be derived from the Convention.
UGT: Such a provision should be included in the revised Convention.
Saudi Arabia. As defined by the competent authority.
Slovakia. During pregnancy and until the end of the ninth month after childbirth.
South Africa. BSA: Morally, it is difficult to say no. However, where the woman is in a key position and in SMEs, the employer might not be in a position to accommodate this. The question then arises who should pay and be inconvenienced. The employer and co-workers should not be expected to carry the burden.
Spain. We do not understand the reference to three months. If the work is prejudicial to the health of the woman or to that of her child, it should simply not be performed.
CIG: Yes. But without any negative repercussions on the woman's labour rights and economic entitlements.
CCOO: Yes. A change of position should be arranged.
Sweden. When direct prohibitions derive from work environment hazards which cannot be eliminated and where there is no possibility of transfer to other duties.
Tunisia. The maximum duration of the prohibition should be determined by national legislation.
Turkey. A time limitation may not be appropriate.
TISK: No. The Convention provides that maternity leave may be extended where necessary and that additional leave may be granted. Consequently, the inclusion of such a provision in the Recommendation would introduce a different obligation on a subject which has been regulated. According to the Convention, the woman could refrain from working to the extent required by her state of health. In other words, on presentation of a medical certificate, her rest period could be prolonged if her work would be detrimental to her health or to that of her child.
United Kingdom. In general, a prohibition is unnecessary where steps are taken to remove her from any identified risk to her health or that of her child. A balance needs to be made between protecting the health of women and protecting their opportunities to compete on equal terms in the labour market.
United States. Unless health and/or safety concerns for a woman or a foetus actually interferes with the employee's ability to safely perform those aspects of the job that fall within the "essence" of the particular business. Federal courts have held that women are to be given the right to make the same choices accorded to men as to whether they wish to risk their reproductive health for a particular job. Male and female workers who are planning a pregnancy and women who are pregnant can be informed about hazards and advised against specific work, but cannot be excluded from work.
USCIB: This would be inconsistent with American law and practice, which seeks to treat all qualified individuals equally. Neither the employer nor the State may determine what is injurious to a pregnant woman's health or that of the foetus. The choice to work or not to work is the woman's and not the State's.
AFL-CIO: Employers have an obligation to provide a safe and healthy workplace for all workers. There should be no special restrictions or prohibitions based on pregnancy or health and safety of mother and/or child except in instances where the working conditions pose a unique and serious danger for the mother and/or child. Where such special circumstance exist, or where the workplace poses risk for all workers, the employer must take all reasonable steps to make the workplace safe and, failing that, must provide an accommodation that enables the employee to continue working at full pay and benefits.
Uruguay. National Chamber of Commerce and Chamber of Manufacturers: Yes. In case a suitable job does not exist, other mechanisms of social security should be put in place to protect her.
Venezuela. CTV: The employer should be obliged to transfer the woman to a different post where there are no such health hazards.
Viet Nam. A lighter job should be provided.
This proposed provision, which recalls Paragraph 5(2) of Recommendation No. 95, was strongly supported by governments, employers' and workers' organizations. It is retained as Point 22(1) of the Proposed Conclusions.
Two different approaches to the question of health protection for pregnant and nursing women were revealed in the comments to this question. First, in many countries, identification by the competent authority of certain types of work as being prejudicial to a woman's health or that of her child results in general prohibitions. In others, an analysis is made of workplace risks and of a particular woman's capacity to perform her job safely. An approach based on risk analysis, modification of duties, and temporary transfer was seen by a number of respondents as preferable to outright prohibition. One government suggested that flexibility was needed to provide solutions on a case-by-case basis, particularly when supported by a medical certificate.
Several replies cautioned that care must be exercised to ensure that prohibitions do not result in discrimination. A similar number pointed out that all employees had the right to work in safe and healthy conditions and that reproductive hazards affected men as well as women. One government stressed the need to balance health protection with equality of opportunity. Several respondents noted the importance of ensuring job security, employment rights and pay during any period of prohibition.
A number of proposals were made as to who should exercise responsibility
for determining when a pregnant or nursing woman should be prohibited from certain
work — for example, an independent competent authority, a medical doctor, the
employer, or collective agreements — and whether prohibitions should be limited
to very dangerous occupations or to certain degrees of exposure. As formulated
in Point 22(1), these determinations would be made at the national level.
Qu. 24 |
|
Where the woman's work is the subject of a prohibition
of employment during pregnancy and nursing or involves a risk to
her health or that of the child, should measures be taken to provide,
on the basis of a medical certificate, as appropriate, an alternative
to such work in the form of: |
Total number of replies: 103.
Affirmative: 81. Algeria, Argentina, Australia, Austria, Bahrain, Barbados, Belarus, Belgium, Benin, Botswana, Brazil, Bulgaria, Cameroon, Canada, Central African Republic, Chad, Chile, China, Colombia, Comoros, Costa Rica, Cyprus, Czech Republic, Denmark, Ecuador, Egypt, El Salvador, Estonia, Ethiopia, Finland, Germany, Ghana, Guyana, Honduras, Hungary, India, Islamic Republic of Iran, Italy, Jamaica, Japan, Jordan, Kenya, Republic of Korea, Kuwait, Lithuania, Luxembourg, Malaysia, Mali, Mauritius, Republic of Moldova, Netherlands, New Zealand, Nicaragua, Niger, Oman, Pakistan, Papua New Guinea, Peru, Philippines, Poland, Portugal, Romania, San Marino, Saudi Arabia, Seychelles, Slovakia, Slovenia, South Africa, Sri Lanka, Suriname, Switzerland, Thailand, Togo, Trinidad and Tobago, Tunisia, Ukraine, United Arab Emirates, United States, Uruguay, Venezuela, Zimbabwe.
Negative: 1. Namibia.
Other: 21. Congo, Croatia, Cuba, France, Greece, Indonesia, Latvia, Lebanon, Mexico, Morocco, Mozambique, Norway, Qatar, Russian Federation, Spain, Sweden, Syrian Arab Republic, Tajikistan, Turkey, United Kingdom, Viet Nam.
Algeria. Resort to option (c) if the employer is unable to ensure measures (a) or (b).
Argentina. Additional provisions should guarantee the woman's right to return to her previous work at the same rate of pay.
CGT: Yes. The instrument should also guarantee continued payment of her wages.
Australia. Members should have the flexibility of all three options to facilitate the cautious application of prohibitions against work presenting health risks.
ACTU: In the case of leave, this should involve payment of lost wages separate from any paid maternity leave entitlement.
Austria. In none of the three cases should any reduction in remuneration be permitted. Transfer to another job should only occur within the framework of the existing employment contract and where the woman worker can reasonably be expected to occupy the position. Finally, the term "leave" in (c) should be replaced by "release".
BAK: Yes. Transfer should be allowed only if the new post is equivalent in status to the old one.
Azerbaijan. Azerbaijan Trade Unions Confederation: Yes.
Bahrain. This proposal should be applied in very limited cases, according to predetermined conditions, to avoid negative effects to the employer as a result of transfers, adaptation of conditions of work or leave.
Brazil. See Question 23.
CNC and CNI: Only (b).
Canada. Yes to (a), (b) and (c), but not only where a prohibition exists. For example, the Canada Labour Code provides modification of job duties, reassignment to another job or, as a last resort, a leave of absence, upon presentation of a medical certificate attesting to the fact that the job, or a medical condition, may pose a risk.
Chile. CPC: Only (a) and (b).
China. May be arranged as progressive provisions.
Colombia. Option (c) could present legal problems in some countries, including Colombia.
Congo. Depending on her condition, option (b) or (c).
Costa Rica. The particular option chosen will depend on the country's social security system.
Croatia. All social partners agree that an alternative to such work should be provided in the form of (b) or (c). The requirement under (a) is difficult, and in many cases, impossible to fulfil.
Cuba. If, as a consequence of her pregnancy, she cannot perform her usual duties, she should be provisionally transferred, on the basis of medical advice, to another position suitable for her physical condition.
Cyprus. To be transferred to the Convention.
Czech Republic. Yes to (a) and (b). Concerning (c) : unpaid leave.
UZS „R: Yes to (a), (b) and (c), with the provision that giving leave, when it is impossible to transfer to other work, should be absolutely exceptional and should be determined by national legislation.
Dominica. CSA: Yes.
DAWU: Yes. Preferably (a) in the first instance.
DTU: Yes.
WAWU: Yes.
Ecuador. CONAMU: These measures would be appropriate, as long as they do not affect the woman's labour rights as far as type of work, remuneration and security are concerned. The Convention should protect women workers in employment relationships, entitling a woman to perform other work in the event that the work to which the employer has assigned her is prejudicial to her health or to that of her child. The Convention should establish the obligation for the employer to offer the woman work of a similar nature, that is similarly paid and that is not prejudicial to her health or to that of her child.
UGTE: Yes. Care should be taken to safeguard job security.
Egypt. Preferably it would be done through collective negotiation, so as to reach the best and most suitable of the three options.
Federation of Egyptian Industries: Yes. Provided that the appropriate form of these measures be decided on an agreed basis between the employers' organizations and the trade union in the enterprise.
France. National public service regulations do not prohibit pregnant women from having access to jobs which are prejudicial to health. They provide instead for a temporary adaptation of conditions of work or in the exercise of professional duties, upon the advise of the physician responsible for preventive medicine. The woman retains the level of pay and other advantages linked to her initial duties.
CNPF: Yes to (a) and (b) only.
CFDT: Yes. (a) and (b) should be examined before (c).
CFE-CGC: Yes.
CFTC: Yes.
CGT-FO: Yes.
Germany. This scale of options is specified in Article 5 of European Union Directive 92/85/EEC.
DGB: If (a) and (b) are not possible, the alternative should be leave with continued payment of benefits by the employer.
Ghana. NCWD: Yes. On condition that the woman is permitted to return to her original work when risks are no longer pertinent. A doctor's recommendation and the woman's consent must be sought.
Greece. See Question 23. If the worker's case is mentioned in the report on exposure to safety and health hazards in the enterprise, then measures (a), (b) and (c) should be applied. A medical certificate would not then be necessary. In any case, it is not possible for a doctor to know the nature, length and degree of the woman's exposure to dangerous conditions or other elements needed to reach a decision. With regard to leave, the manner in which the worker is covered by her employer must be determined. We have reservations regarding cash benefits provided through social insurance.
India. HMS: Yes to (b) and (c).
Indonesia. The instrument should contain a provision permitting (a) and (b), as in Recommendation No. 95, Paragraph 5(5).
Iraq. General Federation of Trade Unions: Yes.
Italy. It is necessary to provide for the verification of conditions of work and/or environmental conditions by the supervisory bodies which may order the transfer of a woman worker to other tasks. A worker, who as a result of such transfer is assigned tasks inferior to those she normally carries out, should retain the remuneration corresponding to the tasks previously carried out.
Jamaica. JEF: Lay-off without pay should also be an option.
Japan. "Where the women's work is the subject of a prohibition of employment during pregnancy and nursing" should be replaced by "Where the work of the woman who is in the period of pregnancy or nursing is the subject of a prohibition of employment during that period". Furthermore, "or involves a risk to her health or that of the child" should be replaced by "or is prejudicial to pregnancy, childbirth, nursing, etc.".
NIKKEIREN: However, adaptive measures should not be stipulated in a uniform manner, as actual circumstances differ from country to country and from establishment to establishment. "Where the woman's work is the subject of a prohibition of employment during pregnancy and nursing" should be replaced by "where the work of a pregnant or nursing woman is the subject of a prohibition of employment during such period", and "involves a risk to her health or that of the child" by "prejudicial to pregnancy, confinement and nursing". A flexible provision should be formulated to permit, for example, changing the place of work, reducing the woman's work, reducing her working hours, etc. When reducing working hours, regulations must allow reducing wages accordingly. Regarding a right of transfer in individual cases on the basis of a medical certificate, the question is whether the content and scope of maternity protection should embrace the health of the mother and the child after birth.
Jordan. Provided that the leave in (c) is unpaid.
Amman Chamber of Industry: Yes. This depends on the administration's opinion and on the nature of the work.
Latvia. Yes to (a) and (b).
Lebanon. Such alternatives should be determined by the institution itself in accordance with its circumstances. Alternative (b) seems reasonable should there be a vacant post to transfer the woman to. Transfer raises questions as to the level of the new position and the right to return to the original position when the reasons for the transfer are no longer valid. Alternative (c) raises questions on the duration of leave and whether it is paid or unpaid.
Lithuania. Lithuanian Workers' Union: Yes. The level of earnings should not be reduced in this case.
Malaysia. MTUC: Yes to (a) and (b). Employers have to find an alternative job and not dismiss the employee.
Mauritius. The three measures as proposed above should be adopted in chronological order, leave being given as a last resort when no other alternative has been identified.
MEF: No.
Mexico. Yes to (a) and (b). The granting of leave, as in (c), could be determined through collective bargaining.
Morocco. Yes to (a) and (b) only.
FCCIS: Yes.
CDT: Yes.
Mozambique. Yes to (b) and (c).
Namibia. Should be covered under occupational health and safety practices.
NEF: Yes.
NUNW: Yes. In accordance with the law.
Netherlands. FNV: See Question 25.
New Zealand. See Question 23.
NZEF: See Question 23.
NZCTU: Yes. These provisions are not necessarily too prescriptive as they do not contain formal measurements.
Nicaragua. The three clauses should be included in one paragraph.
Norway. Under national regulations on reproductive damage and working environment, if suitable protection and safety measures fail to give adequate protection, pregnant and nursing employees shall be transferred to another post or cease such work.
Papua New Guinea. In line with national laws and regulations.
Peru. All possibilities should be provided so that the woman can carry out work that does not harm her health.
Poland. KPP: Only (a) and (b).
Portugal. The measures described under (a), (b) and (c) are to be stipulated alternatively. Non-insertion of these rules in the Convention can only be understood because they would jeopardize its ratification by many countries.
CIP: No objection.
UGT: The provision should include an obligation on the employer to evaluate conditions of work and to inform the woman worker of the results of the evaluation and the protective measures subsequently taken. With regard to transfer, the new salary must be compatible with the grade and status of the woman, without any reduction in remuneration. Dispensation from work should involve payment of cash benefits on the same basis as for maternity leave. Such a provision should be included in the revised Convention.
Qatar. Yes to (a) and (b) only.
Romania. CSDR: Transfer to another post.
Russian Federation. National legislation provides that, on the basis of a medical certificate, a pregnant woman's output or performance quota should be reduced, or she should be transferred to lighter work which does not involve factors prejudicial to health, during which her average pay in her former job should be maintained. Until a transfer has been arranged, a pregnant woman shall be released from work and paid her former average wage by the enterprise.
South Africa. BSA: This might not be feasible where the woman is in a key position and in the case of SMEs. Any ILO instrument should take this into account.
Spain. National legislation respecting the prevention of industrial hazards makes provision for maternity protection.
CIG: Yes. But without any negative repercussions on her labour rights and economic entitlements.
CCOO: Yes.
Sweden. A similar approach has been adopted in Sweden. Compensation for this form of leave is provided under national legislation.
Syrian Arab Republic. In the event of transfer, the vacated position should be retained and returned to after maternity leave and nursing have ended.
Tajikistan. Yes to (b).
Trinidad and Tobago. The employee should suffer no reduction in her normal level of earnings.
Turkey. Yes to (a) and (b) only.
TISK: Yes.
TÜRK-IÔ: Yes.
United Kingdom. The provision of an alternative to work involving a risk to health need not be linked to a medical certificate. The need to seek professional advice may be only one aspect of risk assessment. The steps to be taken as set out are the most appropriate.
United States. If the prohibition referenced is a medical one from the woman's examining physician or the result of a bona fide occupational qualification.
USCIB: No. American law does not recognize that pregnant women can be prohibited from any type of employment.
AFL-CIO: The woman's full pay and benefits should be maintained during the period of accommodation and her job security guaranteed.
Uruguay. National Chamber of Commerce and Chamber of Manufacturers: Yes to (a) and (b) ; yes to (c) if leave is covered by social security.
Venezuela. CTV: All necessary measures should be taken and the woman's continued employment guaranteed.
Viet Nam. Yes to (b).
There was strong support from governments, employers' and workers' organizations on the need to provide a graduated set of protective measures for women whose work is subject to a prohibition of employment or involves a risk to health during pregnancy and nursing. The proposed text widens the options provided for in Paragraph 5(4) and (5) of Recommendation No. 95.(10) Very few negative replies were received, although some respondents preferred only two of the three options proposed. Given the large majority of affirmative responses, this provision was retained as Point 22(2) of the Proposed Conclusions.
The Office wishes to note that the type of work qualified by the descriptive phrase "subject to a prohibition of employment" would cover instances in which a general prohibition of employment exists for pregnant or nursing women with regard to such work. The phrase "involves a risk to her health" would cover instances in which (a) a risk to the health of pregnant women or nursing mothers has been determined by the competent authority with regard to certain types of work; (b) a risk analysis has determined that a risk to the health of mother or child exists; or (c) a medical doctor has determined that a change in the nature of her work is necessary in the interest of her health or that of her child. While the determination that a change in work is necessary for health reasons would require a medical certificate, an adaptation of working conditions due to a general prohibition may not require medical certification.
With regard to modifications to working conditions, one employers' organization pointed out that SMEs would have the greatest difficulty complying with these requirements and that their application to women in key positions would not be easy. These points were also made concerning transfer. Other concerns expressed with regard to transfer included the need to ensure that the same conditions of employment were respected with regard to wages, benefits, rights and job security. The right to return to the previous post at the end of the period of prohibition was also mentioned. Regarding leave, a number of respondents raised the legal questions with regard to the type of leave to be accorded (i.e. something other than maternity leave), its duration, whether or not it should be paid, and less frequently, the problem of job security. As formulated, these matters would be determined in accordance with national laws, regulations or practice.
Qu. 25 |
|
Should the work referred to in Questions 23 and
24 above include, in particular: |
Global reply to Question 25:
Total number of replies: 16.
Affirmative: 6. Chile, Cuba, Hungary, Italy, Japan, Portugal.
Negative: 1. Australia.
Other: 9. Argentina, Canada, Costa Rica, Mexico, New Zealand, Norway, Sweden, Tunisia, United Kingdom.
Subparagraph (a) :
Total number of replies: 87.
Affirmative: 81. Algeria, Austria, Bahrain, Barbados, Belarus, Belgium, Benin, Botswana, Bulgaria, Cameroon, Central African Republic, Chad, Chile, China, Colombia, Comoros, Croatia, Cyprus, Czech Republic, Denmark, Ecuador, Egypt, Estonia, Ethiopia, Finland, France, Germany, Ghana, 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, Morocco, Mozambique, Netherlands, Nicaragua, Niger, 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, Thailand, Togo, Trinidad and Tobago, Turkey, Ukraine, United Arab Emirates, Uruguay, Venezuela, Viet Nam, Zimbabwe.
Negative: 3. Namibia, Tajikistan, United States.
Other: 3. Brazil, Congo, Greece.
Subparagraph (b) :
Total number of replies: 86.
Affirmative: 81. Algeria, Austria, Bahrain, Barbados, Belarus, Belgium, Benin, Botswana, Bulgaria, Cameroon, Central African Republic, Chad, Chile, China, Colombia, Comoros, Croatia, Cyprus, Czech Republic, Denmark, Ecuador, Egypt, El Salvador, Estonia, Ethiopia, Finland, France, Germany, Ghana, 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, Morocco, Mozambique, Netherlands, Nicaragua, Niger, 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, Thailand, Togo, Trinidad and Tobago, Turkey, Ukraine, United Arab Emirates, Uruguay, Venezuela, Viet Nam, Zimbabwe.
Negative: 3. Namibia, Tajikistan, United States.
Other: 2. Brazil, Greece.
Subparagraph (c) :
Total number of replies: 81.
Affirmative: 74. Algeria, Austria, Barbados, Belarus, Belgium, Benin, Botswana, Bulgaria, Central African Republic, Chad, Chile, China, Colombia, Comoros, Croatia, Cyprus, Czech Republic, Ecuador, Egypt, El Salvador, Estonia, Ethiopia, Finland, France, Germany, Ghana, Guyana, Honduras, India, Islamic Republic of Iran, Italy, Jamaica, Jordan, Kenya, Republic of Korea, Kuwait, Latvia, Lithuania, Luxembourg, Malaysia, Mali, Mauritius, Republic of Moldova, Morocco, Mozambique, Nicaragua, 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, Thailand, Togo, Trinidad and Tobago, Turkey, Ukraine, United Arab Emirates, Venezuela, Viet Nam, Zimbabwe.
Negative: 4. Bahrain, Namibia, Netherlands, United States.
Other: 3. Brazil, Cameroon, Denmark.
Subparagraph (d) (i):
Total number of replies: 81.
Affirmative: 73. Algeria, Austria, Bahrain, Barbados, Belarus, Belgium, Benin, Botswana, Bulgaria, Cameroon, Central African Republic, Chad, Chile, Colombia, Comoros, Cyprus, Czech Republic, Denmark, Ecuador, Egypt, Estonia, Ethiopia, Finland, France, Germany, Ghana, Guyana, Honduras, India, Islamic Republic of Iran, Jamaica, Jordan, Kenya, Republic of Korea, Kuwait, Latvia, Lithuania, Luxembourg, Mali, Mauritius, Republic of Moldova, Morocco, Mozambique, Nicaragua, Niger, 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, Thailand, Togo, Trinidad and Tobago, Turkey, Ukraine, United Arab Emirates, Venezuela, Viet Nam, Zimbabwe.
Negative: 6. Croatia, Malaysia, Namibia, Netherlands, Tajikistan, United States.
Other: 2. Brazil, Lebanon.
Subparagraph (d) (ii):
Total number of replies: 79.
Affirmative: 75. Algeria, Austria, Bahrain, Belarus, Belgium, Botswana, Bulgaria, Central African Republic, Chad, Chile, China, Colombia, Comoros, Croatia, Cyprus, Ecuador, Egypt, El Salvador, Estonia, Ethiopia, Finland, France, Germany, Ghana, Guyana, Honduras, India, Islamic Republic of Iran, Jamaica, Jordan, Kenya, Republic of Korea, Kuwait, Latvia, Lebanon, Lithuania, Luxembourg, Malaysia, Mali, Mauritius, Republic of Moldova, Morocco, Mozambique, Netherlands, Nicaragua, Niger, 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, Thailand, Togo, Trinidad and Tobago, Turkey, Ukraine, United Arab Emirates, Uruguay, Venezuela, Viet Nam, Zimbabwe.
Negative: 3. Namibia, Tajikistan, United States.
Other: 1. Brazil.
Subparagraph (d) (iii):
Total number of replies: 78.
Affirmative: 74. Algeria, Austria, Bahrain, Barbados, Belarus, Belgium, Botswana, Bulgaria, Central African Republic, Chad, Chile, China, Colombia, Comoros, Croatia, Cyprus, Ecuador, Egypt, El Salvador, Estonia, Ethiopia, Finland, France, Germany, Ghana, Guyana, Honduras, India, Jamaica, Jordan, Kenya, Republic of Korea, Kuwait, Latvia, Lebanon, Lithuania, Luxembourg, Malaysia, Mali, Mauritius, Republic of Moldova, Morocco, Mozambique, Netherlands, Nicaragua, Niger, 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, Thailand, Togo, Trinidad and Tobago, Turkey, Ukraine, United Arab Emirates, Venezuela, Viet Nam, Zimbabwe.
Negative: 3. Namibia, Tajikistan, United States.
Other: 1. Brazil.
Subparagraph (d) (iv):
Total number of replies: 51.
Affirmative: 39. Austria, Barbados, Benin, Chile, China, Colombia, Comoros, Croatia, Ecuador, Ethiopia, Finland, France, India, Jordan, Kenya, Kuwait, Lebanon, Luxembourg, Mali, Mauritius, Morocco, Netherlands, Nicaragua, Niger, Oman, Pakistan, Papua New Guinea, Peru, Qatar, Romania, San Marino, Slovakia, Suriname, Syrian Arab Republic, Trinidad and Tobago, Turkey, Ukraine, Venezuela, Viet Nam.
Negative: 4. Honduras, Sri Lanka, Thailand, United States.
Other: 8. Brazil, Bulgaria, Congo, Egypt, Namibia, Philippines, Spain, Togo.
Argentina. The particular criteria adopted should be determined by each country.
CGT: Yes to (a)-(d) (iv). (a) Such work carries hazards for pregnant women and should be treated in the same way as any other hazardous work. (d) (i) On the basis of a medical certificate. Regular breaks are also possible. (d) (iv) Work in the health sector, which is not compatible with pregnancy; handling cadavers; etc.
Australia. The competent authority should specify which areas present a risk to the mother's health and therefore should be prohibited. Guidelines should be updated to remain relevant.
ACTU: Care should be taken in specifying situations giving rise to a prohibition on employment of pregnant women or nursing mothers. Many of the hazards listed above should be addressed for all workers. For example, biological and chemical agents which are reproductive hazards may affect women before pregnancy and also affect men. These issues should be included as part of an occupational health and safety strategy for all workers.
Austria. (d) (iv) The ban on night work and overtime should be mentioned explicitly in the Recommendation as in Paragraph 5(1) of Recommendation No. 95. Employment on means of transport; wood-working with hand knives; piecework; work with high accident risks; frequent stretching, bending and crouching; offensive odours; psychological pressures; tobacco smoke; infection; work with hazardous machines; exposure to jolts, noise and radiation.
Azerbaijan. Azerbaijan Trade Unions Confederation: Yes to (a)-(d) (iv).
Bahrain. (d) (i)-(iii) During the latter part of pregnancy and on the basis of a medical certificate.
Barbados. (d) (i) Regarding sitting, this may be dependent on the quality of the chair and the physical condition of the individual. (d) (iv) Heights.
Belgium. (a) During the last trimester of pregnancy and on medical recommendation.- (d) (i) If a risk analysis has resulted in such a prohibition. (d) (ii) Linked to a risk analysis.
Benin. (d) (iv) Exposure to radiation.
COSI: Yes to (a)-(d) (iv). (b) Indicate the products which pose a risk in the event of pregnancy. (d) (iv) Night work; work in a polluted environment.
Brazil. (a)-(d) (iv) Depends on medical appraisal.
CNC and CNI: No to (d) (iv). (a)-(d) (iii) The Recommendation should not determine the prohibitions, but should leave them to be determined in each case on the basis of medical criteria.
CNF: Yes to (a)-(d) (i). (a) And other arduous work not included in the list.
Bulgaria. (d) (iv) Noise, ultrasound, magnetic waves beyond standard limits.
Canada. The evaluation of how arduous the job or how dangerous the exposure to certain substances is should be left up to a medical doctor. These factors may affect each woman differently. Evaluation should be done on a case-by-case basis.
CEC: Yes to (a)-(d) (i).
CLC: Yes to (a)-(d) (iv). (d) (iv) Shift work.
Chile. In general, a ban should be placed not only upon work with inherent risks for the woman's reproductive system, but on any work which entails a health or hygiene hazard. The competent health authority should determine the health risk for the pregnant woman or her child and should clearly notify any other risk factors.
CPC: Yes to (a)-(c) ; no to (d) (i)-(iii).
China. (d) (ii) The term "extreme temperature" should be defined. (d) (iii) The term "vibration" should be defined. (d) (iv) A pregnant woman should be prohibited from engaging in work that requires frequent bending, climbing or squatting, such as welding, as well as high altitude work, particularly in extreme temperature or poor weather.
Colombia. (a) The Recommendation should be more specific concerning the work prohibited, as broad statements tend more to discriminate than to protect. (b) Specify which type of exposure, which biological agents, which environmental conditions, etc., are dangerous. (c) Specify work, such as performing tasks in elevated positions or on slippery surfaces, that could affect equilibrium. (d) (i) Include specific cases. Change the wording to "work involving remaining in unfavourable positions for long periods of time (standing, sitting or crouching)". (d) (ii) Give specific details of exposure and time. (d) (iii) Give specific details of exposure and time. (d) (iv) Any work that involves danger to the physical and mental health of the mother and her child.
Comoros. (d) (iv) Work requiring extensive movement.
Congo. (a) Specific measures of protection should be taken into consideration. (d) (iv) Pregnant workers in the private sector and in private clinics should be barred from night work after the sixth month of pregnancy.
Costa Rica. The work referred to in questions 23 and 24 will be defined by national legislation in the light of consultations with the relevant workers' and employers' organizations and with representative women's organizations, as provided for in our national legal system.
Croatia. (d) (iv) Other work under (d) (iv) should be prescribed by national legislation.
Cuba. The risk factors should be determined on the basis of medical studies and studies of technical and environmental conditions.
Czech Republic. UZS „R: (a)-(d) (iii) The extent of forbidden types of work should be further specified by the appropriate national health bodies.
Denmark. (c) This provision is too specialized for an ILO Recommendation.
LO: (a) and (c)-(d) (iii) These provisions should be moved to the Convention.
Dominica. CSA: Yes to (a)-(d) (iii).
DAWU: No to (a)-(d) (iii).
DTU: Yes to (a)-(d) (iv). (d) (iv) Managerial and supervisory work involving mental stress, jobs which entail frequent travelling, etc.
WAWU: Yes to (a)-(d) (iii).
Ecuador. (b) With the following addition: exposure to factors of mental stress. (d) (ii) Join extreme temperatures and noise. (d) (iv) Dust, physical loads, ionizing radiations, the handling of chemicals, fungi, parasites, bacteria. Pressure as experienced in a military or police context, levels of mental stress associated with time pressure and deadlines.
CONAMU: (d) (iv) Noise, viruses, fungi, parasites and bacteria, to which there is primarily exposure in hospital and agricultural activities.
UGTE: Yes to (a)-(d) (iv). (d) (iv) Exposure to radiation.
Egypt. (d) (iv) All arduous and dangerous work that might jeopardize the health of women must be prohibited.
Federation of Egyptian Industries: Yes to (a)-(c). (d) (i) Dangerous and arduous work, according to its definition in national law concerning dangerous work in which the employment of women is prohibited.
Estonia. Estonian Association of Trade Unions: Yes to (a)-(d) (iii); no to (d) (iv).
Ethiopia. (d) (iv) Monotonous work and work requiring special attention that may lead to psychological problems, e.g. working on control panels, VDUs, etc.
Finland. The whole list should be updated according to the latest research results, including psycho-social and other risk factors, as might be specified by medical experts. (d) (iv) Noise and shift work, including night work, may be prejudicial to the foetus or the pregnancy.
KT: No to (d) (i).
Federation of Finnish Enterprises: No to (a)-(d) (i).
TT and LTK: No to (a), (c) and (d) (ii)-(iii).
France. CNPF: No to (a), (c)-(d) (i), and (d) (iii)-(iv); yes to (b) and (d) (ii). (b) Some work involving exposure is not prohibited for pregnant workers, but limited.
CFDT: Yes to (a)-(d) (iv). (d) (iii) Including noise. (d) (iv) Any work involving heavy physical or psychological demands.
CFE-CGC: Yes to (a)-(d) (iii); no to (d) (iv).
CFTC: Yes to (a)-(d) (iv). (b) This prohibition should be permanent. (d) (iv) Night work, long hours (more than eight hours at a time).
CGT-FO: Yes to (a)-(d) (iv). (d) (iv) Highly stressful work.
Germany. European Union Directive 92/85/EEC also contains minimum provisions for employment protection (Articles 5-7 and Annexes I and II).
BDA: Yes to (a)-(d) (iii); no to (d) (iv).
DGB: Yes to (a)-(d) (iv). (d) (iv) Work in front of VDUs and piecework.
DAG: Yes to (a)-(d) (iv). (d) (iv) Work on production lines and involving VDUs.
Ghana. NCWD: Yes to (a)-(d) (iii). (d) (iv) Involvement in active military or security service.
GEA: Yes to (a)-(b), (d) (i) and (d) (iii); no to (d) (ii) and (d) (iv).
Greece. (a) The types of work mentioned mostly concern the period of pregnancy rather than nursing. See Question 23. (b) If this point refers to all women of reproductive age rather than simply pregnant workers, then we are opposed.
Honduras. COHEP: Yes to (a) and (b) and (d) (ii) and (iii); no to (d) (i). (a) Any work involving excessive physical effort. (d) (ii) The temperature variations should be determined. (d) (iii) Establish minimum and maximum levels.
Hungary. All these circumstances justify the alleviation of work performed by women who are pregnant or have recently given birth. Prohibited positions include, for example, heavy physical work, work under intensive psychic stress or extreme conditions (heat, noise); exposure to chemical agents implying increased danger to the human body or threatening reproduction or implying genetic hazard; exposure to ionizing radiation or locally acting vibration; underground work, such as mining; or work on the sewage system, etc.
India. (d) (iv) Very high noise levels, night work, overtime work and work in unhygienic conditions.
AITUC: Yes to (a)-(d) (iv). (d) (iv) Workplace dangers.
Indonesia. APINDO: No to (a)-(d) (iii).
Islamic Republic of Iran. (d) (ii) It is necessary to review this issue comprehensively in the light of recent developments in the working environment and discussions of safety at work.
Iraq. General Federation of Trade Unions: Yes to (a)-(d) (iii).
Italy. These provisions reflect those of Recommendations No. 114 (1960), especially Paragraphs 16 and 27; No. 128 (1967), Paragraph 18; and No. 144 (1971), Paragraph 19.
Jamaica. JEF: No to (a)-(d) (iii).
Japan. Yes, if the comments on Questions 23 and 24 are adopted.
NIKKEIREN: The prohibition of night work and overtime should not be included in any new instrument.
JTUC-RENGO: Yes to (a)-(d) (iv). (d) (iv) Extreme noise.
Jordan. (d) (iv) Any heavy work which might affect the health of the employed woman.
Amman Chamber of Industry: Yes to (a)-(d) (iv). (d) (iv) Any oppressive factor which could be harmful for a woman who has just given birth.
Federation of Jordanian Chambers of Commerce: Yes to (a)-(d) (iii); no to (d) (iv).
General Federation of Jordanian Trade Unions: Yes to (a)-(b), (d) (i) and (d) (iii); no to (d) (ii) and (d) (iv).
Kenya. (d) (iv) Work causing extreme physical strain.
Lebanon. (b) The prohibition should include (b), provided the competent authority designates the types of work that represent a reproductive health hazard. (d) (i) The enterprise should be allowed to determine the duration of such periods and to allow rest periods after prolonged periods of sitting or standing. (d) (iv) Work involving the emission of strong gusts of dust.
Lithuania. Confederation of Lithuanian Entrepreneurs/Employers: Yes to (a) (d) (iv). Anything harmful to the health and well-being of the mother and child must be prohibited.
Centre of Lithuanian Trade Unions: Yes to (a)-(d) (iv). (d) (iv) High dust concentrations at the workplace.
Lithuanian Workers' Union: Yes to (a)-(d) (iv). (d) (iv) High dust concentrations.
Unification of Lithuanian Trade Unions: Yes to (a)-(d) (iii); no to (d) (iv).
Luxembourg. (d) (iv) Underground work in mines, exposure to occupational illnesses harmful to pregnancy, piecework.
Malaysia. (a) Appropriate guidelines should be given for "loads". (d) (ii)-(iii) To a reasonable extent.
MAPA: Yes to (a)-(d) (iii).
MEF: No to (a) and (c)-(d) (iv); yes to (b). (a) The above is a question of degree and prohibition should not be made purely based on the above factors.
MTUC: Yes to (a)-(d) (iv). (d) (iv) Radioactive substances, dust and noise.
Mali. (d) (iv) Night work.
Mauritius. (d) (i) In order not to exacerbate personal medical conditions.
Mexico. The text should be drafted in a more general manner, such as: "Prejudicial and unhealthy work is considered to be that which, due to the nature of the work, the physical, chemical and biological conditions of the environment in which it is performed, or the properties of the raw materials used, could affect the life and physical and mental health of expectant mothers or their children". It could also indicate that "national legislation will determine the tasks to be included in this definition".
Morocco. (d) (iv) Use of dangerous machinery.
FCCIS: Yes to (a)-(d) (iii).
CDT: Yes to (a)-(d) (iv). (d) (iv) Underground work, dangerous working conditions.
Mozambique. OTM: Yes to (a)-(d)-(iv).
Namibia. (a)-(d) (iv) Occupational health and safety.
NEF: (a) Strenuous physical work could jeopardize the woman's and baby's health, unless otherwise permitted by a medical practitioner. (b) This would be unacceptable because of possible teratogenic effects on the unborn baby. (c) On the recommendation of a medical practitioner only. (d) (i) The merits of each situation should be taken into account. (d) (ii) Merit-based assessment. (d) (iii) On merit.
NUNW: (a) Pregnant women are not entitled to work with heavy loads. (b) Pregnant women should work in areas with no exposure or lower levels of exposure. (d) (i)-(d) (iii) Special attention should be given to pregnant women. (d) (iv) Any hazardous working environment.
Netherlands. (d) (iv) Noise and excess pressure. Stooping, squatting or kneeling should be avoided.
FNV: Yes to (d) (i). (d) (iv) Article 5(1) of Recommendation No. 95 prohibiting night work and overtime work for pregnant and nursing women should be included in a new Recommendation or even in a new Convention.
New Zealand. The new instruments should provide general guidance and principles rather than imposing specific technical requirements. For example, a general prohibition on work dangerous to the health of a pregnant woman, or a nursing woman and her child, would be more effective than providing a list of prohibited environmental circumstances. This type of matter should be covered under an instrument such as the Occupational Safety and Health Convention, 1981 (No. 155), rather than being included in an instrument dealing with maternity leave. The Occupational Safety and Health Convention should be able to cover a variety of situations where work is dangerous to the health of employees, including the health of pregnant women, or nursing mothers and their children.
NZEF: The extent to which particular work will be hazardous is likely to vary from country to country depending on the ability to provide protections, including the development of new ways of doing things.
NZCTU: These provisions are not necessarily too prescriptive as they do not contain formal measurements.
Nicaragua. (d) (iv) Unhealthy conditions.
Niger. (b) Such work should be forbidden to all for whom it poses a reproductive hazard. (d) (iv) Other types of work should be identified through consultation with the social partners. This should be left to the discretion of the State.
Norway. The guide to national regulations on reproductive damage and working environment contains a non-exhaustive list of risk factors, including most of the items listed here.
Oman. (d) (iv) Work that could induce psychological or mental stress. These are to be determined according to the nature of the job occupied by the woman.
Pakistan. (d) (iv) Any work injurious to the health of mother and child should be prohibited for a woman.
PNFTU: No to (a)-(d) (iii).
Papua New Guinea. (a)-(d) (iii) Under our national laws and regulations, women are restricted from such work or activity. (d) (iv) Other heavy duty work, strenuous work, working longer hours, night work.
Peru. (d) (iv) All human beings, but particularly pregnant workers, should be protected in general from work that implies a risk, danger or deterioration to their health.
CUT: Yes to (a)-(d) (iii).
Philippines. (a) and (c) Subject to the limitations and restrictions of a submitted medical certificate to be reviewed and confirmed by the employer's medical authority. (d) (iv) Night work, overtime work.
Poland. KPP: Yes to (a)-(d) (i).
OPZZ: Yes to (a)-(d) (iv). (d) (iv) In slaughter-houses.
Portugal. (d) (iv) Work involving compressed atmospheres, underground work and high noise levels.
CIP: The definition of dangerous work should be left to national legislation.
CGTP: Yes to (a)-(d) (iii).
UGT: The prohibition on overtime and night work should be included in the Recommendation. Include also any work capable of causing malformation of the foetus or harm to children fed on their mothers' milk.
San Marino. (d) (iv) Ionizing radiations, night work, particularly arduous work.
South Africa. (d) (iii) Especially for a prolonged period.
BSA: (a)-(d) (iii) See Question 24.
Spain. (b) It would be better to use a more specific criterion than physical, chemical and biological agents, along the lines of DIR 92/85/EEC and its annexes. (d) (iv) There is no a priori need to include further factors requiring a physical effort.
Suriname. ASFA: Yes to (a)-(d) (iii). (d) (iv) Depending on the type of job.
FAL: Yes to (a)-(d) (iv). (d) (iv) Unsafe or unhealthy environment.
Sweden. The factors enumerated here are covered in Swedish occupational safety and health regulations, which are based on European Directive 92/85/EEC. Both instruments require an assessment of risks liable to be entailed by environmental factors.
Syrian Arab Republic. (a) Maximum weights must be set. (d) (iv) Any work requiring physical effort or that is inherently dangerous, such as working in mines, quarries, etc.
Togo. (d) (iv) Other cases should be determined by the competent national body.
Trinidad and Tobago. NATUC: No to (a)-(d) (iii).
Tunisia. It would be useful to mention examples of such work in order to guide national legislation. It should then be up to national legislators to determine the conditions of the prohibition according to the type of work and situation of the woman, whether pregnant or nursing.
Turkey. (d) (iv) Work prejudicial to health should be determined by gynaecologists, pediatricians and commissions comprised of labour health and safety experts.
TISK: A more realistic solution would be to provide, in general terms, that women must not be employed on heavy work during pregnancy and after confinement and to leave the details to national legislation, unless the type of work on which they must not be employed is specified in a medical certificate.
TÜRK-IÔ: Yes to (a)-(b) and (d) (i)-(iii).
Ukraine. (d) (iv) Increased levels of radiation.
United Kingdom. The particular aspects of work referred to should certainly be considered in looking at substances, processes or conditions which may affect the health of new or expectant mothers. However, if these are related back to Question 23, new or expectant mothers would be prohibited from a wide range of jobs. Any list of particular aspects of work should be used as a guide on what to look for, rather than as a basis for prohibitions.
United States. USCIB: No to (a)-(d) (iv). (b) An employer's policy of excluding women capable of bearing children from jobs that may be hazardous to unborn children explicitly discriminates against women on the basis of their sex, according to a US Supreme Court decision.
AFL-CIO: Protections for all workers, rather than prohibitions of select groups, should be the course of action taken. Any distinctions based on a greater risk or a probability of risk for a particular group should be supported by a clear demonstration of risk to a discrete group, and the absence of comparable risks for other workers or groups. No distinctions may be made based on presumptions of greater risk.
Uruguay. National Chamber of Commerce and Chamber of Manufacturers: Yes to- (a)-(d) (iii); no to (d) (iv). (a) Such measures should not constitute discrimination against women.
Venezuela. (d) (iv) Psycho-social factors at work, such as insufficiently demanding work, excessive workload, pace of work, "mobbing", organization of work or the enterprise.
Viet Nam. (a) The instrument should guarantee that women who have to leave their jobs do not suffer any loss thereby. (d) (iv) Radiation, noise, dust.
The provisions foreseen by Question 25 correspond to those of Paragraph 5(3) of Recommendation No. 95 with two main differences. First, work involving exposure to biological, chemical and physical agents which represent a reproductive health hazard has been added. Concern with the threat posed by such hazards has grown significantly since 1952, as witnessed by the fact that its proposed inclusion garnered extremely strong support. Second, prolonged periods of sitting and exposure to extreme temperatures were added. Both received firm support. Point 22(3) of the Proposed Conclusions has been drafted in accordance with the very strong support of governments and workers' organizations and majority support of employers' organizations that these types of work should be included.
The questionnaire did not contain questions regarding night work and overtime, which in Paragraph 5(1) of Recommendation No. 95 were prohibited. Six governments and several workers' organizations suggested the inclusion of night work; four governments and a few workers' organizations proposed the inclusion of overtime. With regard to night work, it should be noted that Article 7 of the Night Work Convention, 1990 (No. 171) provides that measures should be taken to ensure that an alternative to night work is available to women workers before and after childbirth, for a period of at least sixteen weeks, without loss of income or benefits. Article 2 of the 1990 Protocol to the Night Work (Women) (Revised) Convention, 1948 (No. 89), provides that exemptions to the prohibition of night work for women shall not be applied during a period before and after childbirth of at least 16 weeks, although national laws or regulation may allow for the lifting of the prohibition at the express request of the woman worker concerned on condition that neither her health nor that of her child will be endangered. Attention is drawn to these standards in the event that the Conference might wish to include a provision regarding night work.
Question 25 referred back to both Questions 23 on prohibitions of employment and 24 on measures to be taken with regard to prohibited work or work involving a risk to health. An observation by the United Kingdom drew attention to the fact that, if linked to Question 23, the list would have encouraged prohibition of a wide range of jobs to pregnant and nursing women. Cognizant of this risk, the Office has drafted Point 22(3) of the Proposed Conclusions to refer only to Point 22(2) regarding the types of measures to be taken with regard to such work.
Opinion was divided between countries that felt that the Recommendation should carry a list of such types of work and those which preferred not to include prescriptive elements. It was noted that there were great variations in countries' abilities to provide appropriate protections. Among those requesting guidance, specific mention was made regarding guidelines for load limits and permissible levels of exposure. The need for a doctor's evaluation or the need to make a case-by-case or merit-based analysis was mentioned by several respondents. The Office notes that the list proposed in Point 22(3) is non-exhaustive.
Question 25(d) (iv) offered the possibility for additional types of work to be included in the list. The most frequent proposals, ranked in order by number of times mentioned, from most to least, included the following: exposure to dust, night work, overtime or long hours, travelling, noise, and stress.
Provisions for nursing mothers
Qu. 26 |
|
(1)Should a woman be entitled to daily break(s) to nurse her
child? |
Paragraph 1:
Total number of replies: 103.
Affirmative: 89. Algeria, Angola, Argentina, Australia, Austria, Bahrain, Barbados, Belarus, Benin, Botswana, Brazil, Bulgaria, Cameroon, Central African Republic, Chad, China, Colombia, Comoros, Costa Rica, Cyprus, Czech Republic, Ecuador, Egypt, El Salvador, Estonia, Ethiopia, Finland, France, Germany, Ghana, Greece, Guyana, Honduras, Hungary, India, Islamic Republic of Iran, Italy, Jamaica, Japan, Jordan, Kenya, Republic of Korea, Kuwait, Latvia, Lebanon, Lithuania, Luxembourg, Malaysia, Mali, Mauritius, Mexico, Republic of Moldova, Morocco, Mozambique, Namibia, Netherlands, Nicaragua, Niger, Pakistan, Papua New Guinea, Philippines, Poland, Portugal, Qatar, 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 States, Uruguay, Venezuela, Viet Nam, Zimbabwe.
Negative: 4. Belgium, Croatia, Oman, Peru.
Other: 10. Canada, Chile, Congo, Cuba, Denmark, New Zealand, Norway, Russian Federation, Seychelles, United Kingdom.
Paragraph 2:
Total number of replies: 96.
Affirmative: 87. Algeria, Angola, Argentina, Austria, Bahrain, Barbados, Belarus, Benin, Botswana, Brazil, Bulgaria, Cameroon, Canada, Central African Republic, Chad, Chile, China, Colombia, Comoros, Congo, Costa Rica, Cyprus, Czech Republic, Ecuador, Egypt, El Salvador, Estonia, Ethiopia, Finland, France, Germany, Ghana, Greece, Guyana, Honduras, Hungary, India, Islamic Republic of Iran, Italy, Jamaica, Jordan, Kenya, Republic of Korea, Kuwait, Latvia, Lebanon, Lithuania, Luxembourg, Mali, Mauritius, Mexico, Republic of Moldova, Morocco, Mozambique, Namibia, Netherlands, Nicaragua, Niger, Pakistan, Papua New Guinea, Philippines, Poland, Portugal, Qatar, Romania, San Marino, Saudi Arabia, Slovakia, Slovenia, South Africa, Spain, Sri Lanka, Suriname, Switzerland, Syrian Arab Republic, Tajikistan, Togo, Trinidad and Tobago, Tunisia, Turkey, Ukraine, United Arab Emirates, United States, Uruguay, Venezuela, Viet Nam, Zimbabwe.
Negative: 5. Denmark, Malaysia, Oman, Peru, Thailand.
Other: 4. Japan, Norway, Russian Federation, United Kingdom.
Paragraph 3:
Total number of replies: 93.
Affirmative: 72. Algeria, Argentina, Austria, Barbados, Belarus, Benin, Botswana, Brazil, Bulgaria, Cameroon, Canada, Central African Republic, Chile, Colombia, Comoros, Costa Rica, Cyprus, Czech Republic, Denmark, Ecuador, Egypt, El Salvador, Estonia, Ethiopia, Finland, Germany, 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, Namibia, Nicaragua, Niger, Pakistan, Papua New Guinea, Poland, Portugal, Qatar, Romania, San Marino, Saudi Arabia, Slovakia, Slovenia, Suriname, Switzerland, Tajikistan, Thailand, Trinidad and Tobago, Tunisia, Turkey, Ukraine, United Arab Emirates, United States, Uruguay, Venezuela, Viet Nam, Zimbabwe.
Negative: 11. Bahrain, Ghana, Mozambique, Netherlands, Oman, Peru, Philippines, Spain, Sri Lanka, Syrian Arab Republic, Togo.
Other: 10. Chad, Congo, Hungary, Japan, Mexico, Morocco, Norway, Russian Federation, South Africa, United Kingdom.
Paragraph 4:
Total number of replies: 93.
Affirmative: 64. Algeria, Argentina, Austria, Bahrain, Barbados, Benin, Botswana, Brazil, Cameroon, Canada, Central African Republic, Chad, China, Comoros, Costa Rica, Cyprus, Czech Republic, Ecuador, Egypt, El Salvador, Estonia, Ethiopia, Finland, Germany, Ghana, Greece, Guyana, Honduras, Hungary, India, Islamic Republic of Iran, Jordan, Kenya, Kuwait, Latvia, Lebanon, Lithuania, Luxembourg, Mali, Mauritius, Republic of Moldova, Morocco, Mozambique, Pakistan, Papua New Guinea, Philippines, Poland, Portugal, Qatar, Romania, Slovakia, Slovenia, South Africa, Spain, Suriname, Switzerland, Tajikistan, Trinidad and Tobago, Tunisia, Turkey, Ukraine, United Arab Emirates, Viet Nam, Zimbabwe.
Negative: 18. Belarus, Chile, Colombia, Jamaica, Republic of Korea, Malaysia, Namibia, Netherlands, Nicaragua, Oman, Peru, San Marino, Sri Lanka, Syrian Arab Republic, Thailand, Togo, United States, Venezuela.
Other: 11. Belgium, Bulgaria, Congo, Denmark, Italy, Japan, Mexico, Niger, Norway, Saudi Arabia, United Kingdom.
Argentina. (1) Legislation should provide for this.
CGT: Yes to (1)-(4).
UIA: Yes to (2).
Australia. (1) Australia's agreement is conditional on revised wording. Rather than "to nurse her child", Australia prefers "for lactation purposes" to cover mothers who choose to express milk at work, rather than to breastfeed their infant. Further, in English "to nurse" has multiple meanings, including to care for the sick and to nurture. Lactation or breastfeeding is the preferred terminology.
ACTU: Yes to (1)-(4).
Austria. (1)-(2) Article 5 of Convention No. 103 (breaks for nursing) should be maintained in the Convention. (4) If so requested by the woman worker.
Azerbaijan. Azerbaijan Trade Unions Confederation: Yes to (1)-(4).
Bahrain. (4) Provided this takes into account the interest of the work and the circumstances of the woman.
Barbados. (2) The campaign to promote breastfeeding among working women will not be successful if the mother is disadvantaged.
Belgium. (1) The woman who desires to nurse her child should have the possibility to do so according to national practice. The Recommendation should foresee different options in order to encourage breastfeeding. (4) The Recommendation should not go into such detail.
CNT: (1) The right of the mother to freely choose to nurse her child and the material possibility for her to exercise this free choice should be guaranteed in the instrument. Implementation should be left to member States to handle in a manner appropriate to their national culture.
Benin. COSI: Yes to (1)-(4).
Brazil. (1) and (3) The form, frequency and duration of the breaks should be appropriate to the lifestyle and working conditions of the woman. (4) Must be in accordance with the tasks performed and lifestyle of the woman.
CNC and CNI: Yes to (1)-(4).
CNF: Yes to (1)-(3); no to (4). (1) Otherwise, crèche expenses should be paid.
Bulgaria. (4) Ministry of Labour and Social Policy: Yes; Ministry of Health: No.
Cameroon. (1) To encourage breastfeeding.
Canada. (1) Daily breaks for nursing should not be legislated in any way, and are best left to established practice. Prohibiting a woman from nursing her child may constitute, under certain circumstances, discrimination on the basis of sex under national legislation. (2) If included in the Recommendation, breaks should be counted as time worked. (3) It may prove advantageous for employers to let employees with special needs breastfeed their child rather than to grant leave altogether. (4) The key words being "where practicable".
CLC: Yes to (1)-(4).
Central African Republic. (2) A contrary view would indicate a will to discriminate and would also restrict the woman's earnings. (3) The doctor's opinion should be the determining factor.
Chad. (3) Only for multiple births.
Chile. (1) The nutritional, immunological and psychological benefits of breastfeeding contribute to the child's social development. This provision must be considered as an aid to maternity protection. (3) Health benefits justify such a provision. When nursing breaks are regulated in a rigid manner, the woman often finds it difficult to make use of them in practice. (4) Because these provisions are designed for nursing, flexibility should be considered as in the previous question. However, if the very right were to be modified (i.e. a right to feed rather than breastfeed), it should then be granted to either of the parents.
CPC: Yes to (1)-(2) and (4); no to (3).
Colombia. (4) This alternative could undermine the spirit of the standard, since the child would not be nursed by its mother.
Congo. (1) They should benefit from nursing breaks determined in accordance with national law and practice. (2) Nursing breaks should not result in the loss of acquired rights. (3) They should be fixed by national law and practice, in collaboration with social partners. (4) Preferably at the beginning of the working day.
Costa Rica. (4) Provided that there is agreement between the employer and worker.
Croatia. (1) Nursing breaks should not be regulated by either instrument.
Croatian Association of Employers: (1) The Convention should regulate this issue. Yes to (2)-(4).
KNSH, SSSH, HUS, MATICA and KHSJSN: Yes to (1)-(4).
Cuba. (1) Nursing breaks during working hours do not achieve the desired objective, bearing in mind the location of the work sites, the distance from home, transportation difficulties, the fact that not all children attend child-care centres at or near the work site, and other disadvantages. It is more beneficial to extend maternity leave to 12 weeks following confinement to allow uninterrupted nursing by the mother, and to offer the opportunity to take other types of leave once the postnatal leave has come to an end, until the child is six months old.
Cyprus. (1)-(2) To be transferred to the Convention.
Czech Republic. UZS „R. (4) According to a doctor's recommendation.
Denmark. (1) Such a provision would not comply with Danish custom. (4) Such a scheme would be unnecessarily complicated.
LO: Yes to (1) and (4).
Dominica. CSA. Yes to (1)-(3); no to (4). (4) Breaks should be taken when necessary.
DAWU: Yes to (1)-(4).
DTU: Yes to (1)-(2); no to (3)-(4). (3) It is expected that mothers must nurse their child unless otherwise prescribed. Therefore, such practice should be allowed by consent. (4) Such benefits should be a right in particular cases and circumstances where normal work and those benefits coexist.
WAWU: Yes to (1)-(4).
Ecuador. (3) The necessary time should be specified. If extra time is needed, a medical certificate should be presented.
CONAMU: Yes to (1)-(2) and (4). (3) A medical certificate should not be necessary to reach agreement on this matter. The employer and the woman should set the frequency and length of the breaks in accordance with the needs of the mother and the child. (4) To be settled between the employer and the woman.
UGTE: Yes to (1)-(4). (3) To be effective this provision must be flexible. (4) This option would help to reconcile the needs of maternity with work.
Estonia. Estonian Association of Trade Unions: Yes to (1)-(4).
Ethiopia. (1) Providing the break should depend upon the schedules of work, shift systems and above all the proximity of the woman's home to the workplace. (4) Based on the local conditions.
CETU: Yes to (1)-(4). (3) Provided the mother agrees. (4) Provided that it does not go against the will of the mother and the child.
Finland. (1) As a rule, the worker should have the possibility of maternity leave of such length that no separate arrangements for nursing would be needed. (2) If appropriate in the national context.
TT, LTK, Federation of Finnish Enterprises and KT: No to (1)-(4).
France. CNPF: Yes to (1); no to (2)-(4).
CFDT: Yes to (1)-(3); no to (4). (3) For example, for premature infants. (4) Allow for some flexibility in the working day.
CFE-CGC: Yes to (1)-(3); no to (4). (4) The purpose of the break is to nurse the child, not to result in a reduction in working time.
CFTC: Yes to (1)-(3); no to (4). (3) To avoid unjustified absenteeism and/or employer's control. (4) Or else offer this possibility to all women who bottle-feed their children!
CGT-FO: Yes to (1)-(4).
Germany. (1) At the nursing mother's request.
BDA: Yes to (1); no to (2)-(4). (1) and (4) Only if the working time is made up.
Ghana. NCWD: Yes to (1)-(4).
GEA: Yes to (1)-(2) and (4); no to (3).
TUC: Yes to (1)-(4). (3) Women with multiple births should get more time.
Guyana. (4) At the end of the day.
Honduras. (1) At the beginning or end of her day's work. (4) In order not to interrupt the continuity of work during the day.
COHEP: No to (1)-(2); yes to (3)-(4).
Hungary. (3) A general regulation would be sufficient. A medical certificate should be required only in unusual cases.
India. AITUC: Yes to (1)-(3). (1)-(2) As per Convention No. 3. (3) As per national law or collective agreement.
Bharatiya Mazdoor Sangh: Yes to (1); no to (3)-(4). (2) Remuneration for nursing breaks is an investment in health and reduces future medical expenses. (3) The frequency and length of breaks should be uniformly decided on a scientific basis. Laws and practice should be changed accordingly. (4) Intermittent breaks are necessary.
HMS: Yes to (1)-(2) and (4); no to (3).
Indonesia. APINDO: Yes to (1)-(3); no to (4).
Islamic Republic of Iran. (4) Some conditions should apply with regard to conditions of work, timing, and the need for agreement between employer and employees.
Iraq. General Federation of Trade Unions: Yes to (1)-(4).
Italy. (1) The working mother should have the right to leave the enterprise unless a special room for nursing is provided on the premises.
Jamaica. JEF: No to (1)-(2); yes to (3)-(4).
Japan. (2)-(4) This should be determined by each Member in accordance with that country's actual situation. There should not be such a provision in the Recommendation.
NIKKEIREN: Yes to (1) and (4); no to (2). (1) The period of nursing and other details should be clarified. (2) National laws and regulations do not consider "nursing time" as "working time". Remuneration for nursing breaks would be problematic. (3) It should be left to national laws and regulations.
JTUC-RENGO: Yes to (1)-(2) and (4). (1)-(2) These provisions should be included in the Convention. (3) This provision should remain as in Convention No. 103.
Jordan. (4) If based on an agreement between the employed woman and the employer.
Amman Chamber of Industry: Yes to (1)-(3), no to (4). (4) Each case should be dealt with separately.
Federation of Jordanian Chambers of Commerce: Yes to (1)-(3). (4) At the end of the day.
General Federation of Jordanian Trade Unions: Yes to (1) and (3); no to (2) and (4).
Kenya. (1) This should be determined through collective agreements. (2) So long as the breaks do not exceed the limit set through individual contracts or collective agreements.
Republic of Korea. (1) Only for children under a certain age.
KEF: No to (1)-(2); yes to (4).
Kuwait. (2) Yes, in economically developed countries. In other countries, breaks may be deducted from working time and paid half-wages.
Lebanon. (1) The competent authority should determine the duration of such breaks and benefits involved. (2) Details should be left to individual member States. (3) Nursing breaks should be determined by individual member States. (4) Yes, but in consultation with the employer. A distinction should be made between situations where nursing facilities are available on or near the premises, and where nursing is to be done at home. The latter would require that the time allotted for nursing be combined.
Lithuania. Confederation of Lithuanian Entrepreneurs/Employers: Yes to (1)-(3). (4) Upon mutual agreement.
Unification of Lithuanian Trade Unions: Yes to (1)-(3); no to (4).
Malaysia. (1) If the workplace provides for a child-care centre, and adjustments are made if possible to her hours of rest.
MAPA: No to (1).
MEF: No to (1).
MTUC: Yes to (1)-(3); no to (4). (4) It should be on the employer's time.
Mali. (4) Offer the possibility of taking nursing breaks at two separate times.
Mauritius. MEF: Yes to (1)-(3); no to (4). (2) If more than 12 months' continuous service has been attained by the mother.
Mexico. (3) National legislation should determine the nursing breaks. Collective bargaining is the best way of regulating this situation. (4) Not as a predetermined obligation, but as a collective bargaining possibility.
Morocco. (1)-(3) These provisions should be included in the Convention. (4) In agreement with the employer.
FCCIS: (1)-(4) To be negotiated.
CDT: Yes to (1)-(3). (4) At the end of the day.
Mozambique. (2) This right should be established by national legislation. No deduction should be made from wages. (3) It is sufficient for the document to state that the worker has a child of nursing age. (4) An interruption of work logically constitutes a reduction in working hours.
Namibia. (1) Breaks should be limited to an agreed period, frequency and length.
NEF: Yes to (1)-(3); no to (4). (2) To be negotiated through collective agreements or one-on-one negotiations.
NUNW: Yes to (1)-(3); no to (4). (2) This may vary in accordance with collective agreements. (3) National machinery should put this into practice.
New Zealand. This is not a matter for international obligations. Specific arrangements for nursing should be a matter for negotiation between the parties to an employment contract.
NZEF: Arrangements of this nature are best left to the employer and employee, since work situations vary markedly.
NZCTU: Yes to (1)-(4).
Netherlands. FNV: Provisions for nursing mothers should be included in the new Convention.
Niger. (4) This should be addressed by national legislation.
Norway. (1) This would be in accordance with national legislation. (2) This depends on the agreement between the employer and employee. (3) Under national law, a woman who is nursing her child is entitled to request the time necessary for this purpose or a reduction of working hours by up to one hour per day. (4) This is possible under national legislation.
Oman. (1) and (2) The national economy should not have to assume the burden of nursing breaks, as long as bottle-feeding is available.
Pakistan. PNFTU: Yes to (1)-(4).
Papua New Guinea. (4) At the end of the working day.
Peru. (1) May be provided through collective or individual agreements. (2)-(3) To be determined by national legislation. (4) If accepted, the woman should be given the choice.
CUT: Yes to (1)-(3). (2) To avoid additional labour costs which could negatively affect women's employment, nursing breaks should, in principle, be paid through social security or public funds. If that is not currently possible, the breaks should be paid by the employer, but reimbursed when resources become available. (4) No, if nursing breaks are considered as working time and paid. Otherwise, yes.
Philippines. (1) The provision of lactation break(s) is suggested to enable lactating mothers to express their milk while in the workplace. (3) To ensure uniformity in application and no discrimination. (4) This matter should be subject to consultation with employers and workers.
Poland. (3) None the less, such a solution could negatively affect the organization of work.
KPP: Yes to (1)-(4).
OPZZ: Yes to (1)-(4).
Portugal. (1) This entitlement should be stipulated in the Convention.
CIP: No to (2). (1) This right should be restricted to breastfeeding. (3) Limits should be set. (4) The global reduction is incompatible with the purpose of the break.
CGTP: Yes to (1)-(3). (4) If in the interests of the woman, the child and the enterprise.
UGT: Yes to (2) and (4). (1) The Convention should contain the following provision: "Nursing should be a right of the working mother, and she should be entitled to breaks for that purpose". (3) The Recommendation should provide two hours for nursing breaks. (4) By agreement between the worker and the employer.
Romania. Nursing breaks and working time reductions to nurse and care for the child are included in working time and do not entail consequences on remuneration or other material rights. If the child is not at or near the workplace, then a global reduction of working time should be undertaken by combining nursing breaks.
National Council of Private Small and Medium-sized Enterprises: Yes to (1)-(4). (4) Only if the distance between home and work is too great to allow nursing breaks in the course of the working day.
Russian Federation. National law provides for nursing breaks, which are counted as working time and remunerated. The duration of breaks and the conditions under which they are provided are determined taking into account the mother's wishes.
Saudi Arabia. (4) Depending on national legislation.
Seychelles. (1)-(4) No provision is made for nursing breaks.
Slovakia. (4) There is a possibility that, by combining the nursing breaks, they will not be credited as working time paid by the employer.
Confederation of Trade Unions of the Slovak Republic: No.
Slovenia. (1) Only the first 52 weeks after delivery. (3) To be determined by national laws and regulations.
South Africa. (1) Breaks should be provided whether or not they have access to the child during the day. Time off may be needed to express milk. (3) A medical certificate should not be required. The birth certificate may be requested.
BSA: (1)-(4) No. BSA does not believe in an entitlement to such breaks. This matter should be dealt with in individual collective bargaining, not in an ILO instrument.
Spain. (3) This measure could cause uncertainty and hinder the employment of women of child-bearing age.
CIG: Yes to (1)-(4).
CCOO: Yes to (1)-(3).
Sri Lanka. (3) Nursing breaks can be determined by law.
Suriname. ASFA: No to (1)-(3); yes to (4). (1)-(3) Additional leave for this purpose could be provided on a doctor's advice. (4) Depending on the type of job.
FAL: Yes to (1)-(4).
Syrian Arab Republic. (2) If not remunerated, it shall negatively impact nursing women.
Togo. (1) Respecting national law and practice.
Trinidad and Tobago. ECA: No to (1)-(4). Breast milk can be expressed for use at a later time.
Tunisia. (3) "Particular needs" should be clarified. (4) Subject to agreement between the woman and her employer.
Turkey. TISK: Yes to (1)-(2) and (4); no to (3). (3) Breaks should be taken as uniformly as possible. The definition in national legislation of daily nursing breaks should prevent variations stipulated in medical certificates.
TÜRK-IÔ: Yes to (1)-(4).
United Kingdom. (1)-(4) Arrangements should be left to each Member to determine. We could support a recommendation to encourage employers to adopt family friendly employment practices.
United States. (2) Such breaks should be in accordance with other rest and meal breaks provided by an employer. (3) Minimum breaks should be established with flexibility to allow for special needs. (4) If the employer is flexible in permitting the breaks to be used when needed, there should not be a need for a "reduction" of hours at the beginning or end of a workday. Flexible work arrangements would permit women to time their attendance so these breaks would not be necessary.
USCIB: Yes to (1)-(2); no to (3)-(4). (2) If they constitute a reasonable accommodation without an undue hardship on the employer. (4) This would not be a reasonable accommodation.
AFL-CIO: (1) Yes. Employers should permit appropriate breaks of reasonable duration. (2)-(4) To the extent employers count breaks as working time, they should not treat breaks for breastfeeding any less favourably.
Uruguay. National Chamber of Commerce and Chamber of Manufacturers: Yes to (1) and (3)-(4); no to (2). (1)-(2) and (4) If the job permits. If not, social security should compensate any loss of pay due to reduced working hours.
Venezuela. CTV: Yes to (2)-(4). (1) This right should be stipulated in the Convention, labour legislation or, failing that, in the relevant collective agreement. (4) Subject to discussions between the employer and workers.
Viet Nam. (1)-(4) Nursing provisions should be included in the Convention. (4) It depends on the country's situation.
Zimbabwe. ZCTU: Yes to (1)-(4).
Paragraphs (1) and (2):
A strong majority of replies were in favour of including an entitlement to nursing breaks within the Recommendation. Nursing breaks were provided under Article 5 of Convention No. 103 and in Paragraph 3(1) of Recommendation No. 95. Many respondents attributed great importance to nursing breaks, seeing them as essential for the health and well-being of mother and child. A few replies suggested that this provision be included in the Convention. On the other hand, a few replies did not consider the regulation of nursing breaks as a matter that should be addressed in an international convention on labour standards, but rather one that should be left to national law and practice or collective bargaining. Some replies saw this provision as difficult to implement in practice as it was dependent on many factors, including the availability of on-site child-care facilities or the proximity of the mother's place of work to her child's location. In those countries where maternity leave was long enough to cover the average nursing period, this provision was not necessarily seen as relevant.
Some comments queried the meaning of "to nurse", asking whether it applied to breastfeeding only, or whether it could include bottle-feeding, expressing milk for later use, or simply caring for the child. The Office's intention was for that term to apply only to breastfeeding or the expression of breast milk. Otherwise, there would be no compelling reason to limit the right to the mother of the child. The Office further notes that the rationale in support of nursing breaks is the health benefits of breastfeeding for both mother and child.
There was also general support from governments and workers' organizations, as well as from some employers' organizations, for the proposal that nursing breaks be counted as working time and remunerated accordingly. Many replies acknowledged that breaks for nursing mothers are well-established, counted as working time and remunerated in many countries. A number of replies suggested the qualification that breaks should be provided in accordance with national law and practice, including collective agreements. The provisions contained within Questions 26(1) and 26(2) have been combined within Point 23(1) of the Proposed Conclusions.
Paragraph (3):
A clear majority of governments, along with most employers' and workers' organizations, supported this provision which has been included as Point 23(2) of the Proposed Conclusions. This provision would allow Members to determine the frequency and duration of nursing breaks, while also providing the flexibility to adapt these to particular needs on the basis of a medical certificate.
The Office notes that Article 5(1) of Convention No. 103 specified that the time or times for nursing breaks were to be prescribed by national laws or regulations and Paragraph 3(1) of Recommendation No. 95 provided that adjustments should be permitted on production of a medical certificate. The present provisions (Point 23(2)) broadens the means to give effect to this entitlement.
Paragraph (4):
While a majority of replies supported the inclusion of this new provision, support was somewhat less strong than that expressed for in Paragraphs (1)-(3).
Many replies, in particular from a number of governments and employers' organizations, emphasized that such arrangements must be negotiated between employer and employee. A number of workers' organizations objected to the notion that the combination of nursing breaks should be considered as a reduction of working hours. If such were the case, it might result in lower remuneration. They considered that nursing breaks should take place on the employer's time and whenever necessary during the day.
The Office recalls that under Point 23(1), nursing breaks are to be
considered as working time. In its view, the thrust of this provision is not
meant to regulate working time per se, but to provide flexibility for
a woman whose child is not within close proximity to her workplace to nurse
her child at the beginning or end of the working day. This proposal has been
included as Point 23(3) of the Proposed Conclusions.
Qu. 27 |
|
Should provision be made for the establishment of facilities for nursing under adequate hygienic conditions? |
Total number of replies: 98.
Affirmative: 79. Argentina, Australia, Austria, Barbados, Belarus, Belgium, Benin, Botswana, Brazil, Cameroon, Central African Republic, Chad, Chile, China, Colombia, Comoros, Costa Rica, Cyprus, Czech Republic, Ecuador, El Salvador, Ethiopia, Finland, France, Germany, Ghana, Greece, Guyana, Honduras, Hungary, India, Islamic Republic of Iran, Italy, Jamaica, Jordan, Kenya, Republic of Korea, Kuwait, Lithuania, Luxembourg, Mali, Mauritius, Mexico, Republic of Moldova, Morocco, Mozambique, Namibia, Netherlands, Nicaragua, Oman, Pakistan, Papua New Guinea, Philippines, Portugal, Qatar, Romania, Russian Federation, Saudi Arabia, 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 States, Uruguay, Venezuela, Viet Nam, Zimbabwe.
Negative: 9. Bahrain, Croatia, Egypt, Estonia, Latvia, Malaysia, Niger, Peru, San Marino.
Other: 10. Bulgaria, Canada, Congo, Denmark, Japan, Lebanon, New Zealand, Norway, Spain, United Kingdom.
Australia. See Question 26.
Azerbaijan. Azerbaijan Trade Unions Confederation: Yes.
Bahrain. Such a facility would have economic impediments and is socially and traditionally unacceptable.
Barbados. This provision could be addressed through the establishment of day-care facilities at or near industrial estates and large office complexes.
Botswana. Consideration should be given to the level of development of a country.
Brazil. Only through collective bargaining and taking into account the size of the firm.
Bulgaria. Bulgarian legislation provides for such in establishments employing 20 or more women.
Cameroon. To encourage breastfeeding, especially for women living far from their worksites.
Canada. This should be a voluntary process and employers should be encouraged, but not compelled, to provide these facilities. Such actions could be a disincentive to hire women.
CLC: Yes.
Central African Republic. Such a provision should take into account the size of each establishment.
Chile. It is necessary to seek the most suitable facilities and examine their potential use by the persons concerned, it being understood that these are public premises.
China. Especially those enterprises which employ a large number of women, as well as communities.
Colombia. Enterprises should provide appropriate facilities, taking into account the number of women workers employed, local customs and collective agreements.
Comoros. As far as possible.
Congo. That depends on the level of economic development of each country.
Croatia. KNSH, SSSH, HUS, MATICA and KHSJSN: Yes.
Czech Republic. UZS „R: The establishment and operation of such facilities is very difficult, especially care of small babies during the mother's working day. The solution must be left to the possibilities of the individual employers in cooperation with regional social and health bodies.
Denmark. Adequate hygienic conditions must be ensured.
Dominica. CSA: Yes.
DAWU: Yes.
DTU: Yes. Such provisions should be encouraged where practicable and could raise the level of productivity.
WAWU: Yes.
Ecuador. UGTE: Yes. Employers should be responsible for providing such facilities.
Egypt. This should be left to the discretion of the Member concerned, in consultation with employers' and workers' organizations.
Federation of Egyptian Industries: No. This is to be left to the working conditions in the enterprise, as well as to national laws regulating these conditions, in consultation with employers' and workers' organizations.
Egyptian Trade Union Federation: Yes.
Estonia. A country could decide according to its practice and legislation.
Estonian Association of Trade Unions: Yes.
Finland. TT, LTK and Federation of Finnish Enterprises: No.
France. In the public sector, some administrations which are able to provide child-care facilities allow women to nurse their child. It is difficult to impose the establishment of nursing facilities throughout the sector.
CNPF: No.
CFTC: Yes. Difficult in practice in SMEs and in poor countries.
CGT-FO: Yes. By adapting her place and time of work.
Germany. BDA: No. Details of this kind should not be dealt with in the Recommendation.
Ghana. GEA: Yes. Crèche facilities.
TUC: Yes. Crèches and day-care centres should be provided near workplaces.
Indonesia. APINDO: Yes.
Islamic Republic of Iran. The number of employees should be considered.
Iraq. General Federation of Trade Unions: Yes.
Italy. These facilities should be available to all women workers during the first year of a child's life.
Jamaica. JEF: No.
Japan. This matter should be determined by each Member in accordance with that country's actual situation. There should be no such provision in the Recommendation.
NIKKEIREN: Provisions imposing burdens or obligations on employers should not be included. The desirable solution is for individual corporations to make a comprehensive judgment concerning the wide-ranging needs for improving working conditions and their welfare facilities, and then, if costs permit, to move toward the creation of such facilities. As child-care facilities have an important function as social infrastructure, corporations should not be required to assume responsibility for them alone. This provision should not be included in the Recommendation.
JTUC-RENGO: Yes.
Jordan. Amman Chamber of Industry: Yes, in the place allotted for nursing, if the number of employed women in the enterprise justifies the establishment of a day nursery.
Latvia. Question of social dialogue.
Lebanon. When such facilities are established, due consideration should be given to adequate hygienic conditions.
Lithuania. Confederation of Lithuanian Entrepreneurs/Employers: No.
Malaysia. It should be left to the employers, although encouraged.
MEF: No. Should be done on a voluntary basis.
MTUC: Yes.
Mauritius. MEF: No.
Mexico. Employers should be required to establish adequate hygienic facilities.
Morocco. This provision should be included in the Convention.
Namibia. Where practicable and affordable.
NEF: Yes, running water where possible.
NUNW: Yes. If that particular company can afford to have hygienic conditions. Each and every company should establish such facilities.
New Zealand. See 26(1).
NZEF: See 26(1).
NZCTU: Yes.
Nicaragua. As long as the circumstances of the enterprise and the work permit it.
Niger. Economic difficulties could hinder the establishment of such facilities.
Norway. Suitable conditions may involve a staff room which is only used for limited periods, their own work room or other places where they can rest or nurse without being disturbed.
Papua New Guinea. Depending on the employer's capacity to provide such facilities.
Peru. CUT: Yes.
Philippines. National legislation provides for the establishment by the employer of nurseries in the workplace in appropriate cases and storage facilities for expressed milk.
Poland. KPP: Yes. If possible.
OPZZ: Yes.
Portugal. Conditions of implementation should be provided.
CIP: The matter should be left to the legislation of member States.
Qatar. Where there is a sufficient number of infants.
Romania. When nursing breaks are given to mothers during working time, it is necessary to create conditions for the nursing of infants, inside the workplace or nearby.
National Council of Private Small and Medium-sized Enterprises: Yes. Depending on the results of negotiations between employers' and workers' organizations included in a national-level collective agreement.
Slovakia. Adequate hygienic conditions are the primary precondition for nursing.
South Africa. BSA: This is not an appropriate subject for inclusion in a Recommendation. It is a matter which should be left to collective bargaining.
Spain. As long as it is optional for employers or they are given compensation. As long as it would not hinder the employment of women.
CCOO: Yes.
Suriname. ASFA: See Question 26(1).
Syrian Arab Republic. This would be necessary providing the appropriate hygienic requirements are respected and that this be at the expense of the employer, if possible.
Togo. Only applicable in advanced countries.
Trinidad and Tobago. ECA: No.
Tunisia. The responsibility for creating such facilities should be specified, whether the employer, public authorities, or both. Setting up nursing facilities within the enterprise is not advisable, due to the harmful effects of the working environment on the child's health.
Turkey. Only for establishments employing more than a certain number of women.
TISK: Yes. Particularly in large undertakings.
United Kingdom. See 26(1).
United States. At a minimum, privacy should be accorded the nursing mother. Cold storage facilities for the milk are also essential.
USCIB: Yes. If such facilities are provided for other employees.
AFL-CIO: See Question 26(2).
Venezuela. Consideration should be given to the provision of works nursery facilities to allow the mother to return to her work quickly.
CTV: This should be in the Convention, labour legislation and the relevant collective agreement.
Zimbabwe. ZCTU: Yes. That would need to be discussed further at national level.
Most replies were in favour of this provision which streamlines the substance of Paragraphs 3(2) and (3) of Recommendation No. 95. Its underlying purpose is to ensure the health and welfare of mother and child through the establishment of hygienic nursing facilities. The current situation in many countries was reviewed in Report V(1) on Maternity protection at work, which concludes that although some facilities are provided, many worksites still lack clean, secure and well-maintained facilities for breast-feeding or milk expression. A number of replies stated that employers should be encouraged to provide such facilities on a voluntary basis, rather than be legally obliged to do so. For some, the establishment of facilities should be dependent on the size of the enterprise or the number of women employed. The cost of providing such facilities was a key issue, given that the ability to provide facilities would depend on the financial means of the employer. The Office notes that the Point as formulated leaves open the question of whether such facilities should be established through public or private means. Other replies affirmed that this was an inappropriate issue for an international instrument on labour standards, and that it was a matter to be determined by collective agreements.
Given the majority support for this proposal, it has been included as Point 24 of the Proposed Conclusions.
Related types of leave
Qu. 28(1) |
|
Should an employed mother or father be entitled to parental leave during a period following the expiry of the maternity leave? |
Paragraph 1:
Total number of replies: 101.
Affirmative: 70. Argentina, Austria, Barbados, Belarus, Belgium, Botswana, Brazil, Bulgaria, Cameroon, Canada, Central African Republic, Chile, Colombia, Comoros, Croatia, Cyprus, Czech Republic, Denmark, Egypt, Estonia, Ethiopia, Finland, France, Germany, Greece, Guyana, Honduras, Hungary, India, Islamic Republic of Iran, Italy, Jamaica, Jordan, Kenya, Republic of Korea, Kuwait, Latvia, Lithuania, Luxembourg, Mali, Mauritius, Republic of Moldova, Netherlands, New Zealand, Nicaragua, Norway, Pakistan, Papua New Guinea, Poland, Portugal, Qatar, Romania, San Marino, Slovakia, Slovenia, South Africa, Spain, Suriname, Switzerland, Tajikistan, Trinidad and Tobago, Tunisia, Turkey, Ukraine, United Arab Emirates, United Kingdom, United States, Venezuela, Viet Nam, Zimbabwe.
Negative: 20. Angola, Australia, Bahrain, Benin, Chad, China, Ghana, Malaysia, Morocco, Mozambique, Namibia, Niger, Oman, Peru, Philippines, Seychelles, Sri Lanka, Syrian Arab Republic, Thailand, Togo.
Other: 11. Congo, Costa Rica, Cuba, Ecuador, El Salvador, Japan, Lebanon, Mexico, Russian Federation, Saudi Arabia, Sweden.
Angola. At the employer's discretion.
Argentina. Only when prescribed by a medical practitioner or in specified exceptional cases.
CGT: Provisions on parental leave should be included in labour legislation and practice.
Australia. Provisions pertaining to parental leave should not be addressed in this standard concerning maternity protection. The Workers with Family Responsibilities Convention, 1981 (No. 156), and Recommendation (No. 165) address this form of leave.
ACTU: Yes. The father should also be able to take the "maternity leave" rather than the mother.
Austria. The Convention should provide for parental leave. This entitlement should also exist in the case of adoption.
Azerbaijan. Azerbaijan Trade Unions Confederation: Yes.
Barbados. Especially in cases of children with special needs.
Belgium. It is not necessary for the parental leave to follow immediately after maternity leave.
Benin. There is reason to question the purpose of parental leave.
COSI: Yes.
Botswana. Subject to the level of development of the member States.
Brazil. Only if foreseen in collective agreement.
CNC and CNI: No.
CNF: No. Such leave may impose a motive for discrimination.
Canada. CLC: Should refer to mother, father or partner.
Central African Republic. The length of leave should be limited.
Chile. Only in exceptional circumstances, for instance, if the child is seriously ill.
China. Developing countries generally cannot afford such an entitlement.
Colombia. This possibility could be studied in accordance with the characteristics and circumstances of individual member States.
Congo. This entitlement could be limited to employed men in the days following the delivery by their spouses.
Costa Rica. This provision goes beyond the minimum guarantees for the health of the mother and child and should be left to national legislation in each member State in the light of prevailing economic and social security conditions.
Croatia. Should be regulated by the Convention, not by the Recommendation.
Cuba. National legislation makes no provision for the father's right to parental leave, although additional leave is available for mothers.
Czech Republic. UZS „R. Yes. A maximum of three years after the birth of the child. The employment relationship should continue for this period.
„MK OS: Attention should be paid to EU Directive 96/34/EEC concerning the framework agreement concluded on parental leave.
Denmark. DA: Should not be included in the Recommendation.
FTF: Should be included in the Convention.
LO: Should be included in the Convention.
Dominica. CSA: Yes. The father should also receive parental leave during the first week after the confinement of his wife.
DAWU: Yes.
DTU: No. Only by common agreement when absolutely necessary and in the best interest of employer and employee relations.
WAWU: Yes.
Ecuador. If the health or life of the child are endangered for any reason.
CONAMU: Yes.
UGTE: Yes.
Egypt. Only the mother.
Egyptian Trade Union Federation: No. In order to protect women from discrimination in employment.
El Salvador. Only the mother, in special cases and on the recommendation of a physician.
Ethiopia. Should be left to collective agreements between the employer and employee.
Finland. The rights of fathers and adopted children should be considered in both instruments. At the time of childbirth, fathers should have limited leave to care for the mother and child.
Germany. BDA: No. Parental leave should not be dealt with in a Recommendation on maternity protection. This would tend to blur the distinction between maternity leave, given on health-related grounds, and parental leave, given for the purpose of child care and promoting equality of opportunity.
Ghana. NCWD: Yes.
TUC: Yes.
Guyana. If the health of the child so demands.
Honduras. In justifiable cases.
COHEP: No. All relevant cultural and social factors need to be considered before adopting such a measure.
India. Bharatiya Mazdoor Sangh: Yes. The joint family structure is coming to an end and parents face difficulties nursing children below the age of 1 year. Parental leave of up to one year with or without pay may be granted.
National Front of Indian Trade Unions: No. Where the mother is not employed, the father may be granted paternity leave for a period of one week.
Indonesia. APINDO: No.
Iraq. General Federation of Trade Unions: Yes. Only the mother.
Italy. CONFINDUSTRIA: Should be handled through collective bargaining or national legislation.
Japan. It is inappropriate for this to be provided in the new Recommendation. Maternity protection for pregnancy or childbirth applies only to women. It should be distinguished from the care and rearing of children, which can be shared by men and women. Parental leave, which relates to the latter, should be dealt with in the framework of Recommendation No. 165, which contains a similar provision.
JTUC-RENGO: Yes.
Jordan. Only if the leave is taken out of the annual leave.
Amman Chamber of Industry: Yes. Only if the leave is taken out of the annual leave or is unpaid.
Federation of Jordanian Chambers of Commerce: No.
Kenya. Parental leave, especially for a father, should be determined through collective agreements.
Kuwait. For the employed mother only, except in the case of her death.
Lebanon. To be left to each member State to decide. Parental leave raises two questions: whether it is paid or unpaid; and whether the parent would be entitled to the same or similar position upon return.
Malaysia. MAPA: No.
MEF: No.
Mali. In the spirit of Convention No. 156 concerning Workers with Family Responsibilities.
Mauritius. Only in countries whose economy can sustain the grant of such leave.
MEF: Should be left to the parties.
Mexico. Only in special cases, given that many countries' legislation do not provide for this type of leave.
Morocco. We see no need for a specific provision for parental entitlement to post maternity leave.
FCCIS: To be negotiated.
CDT: Yes.
Mozambique. Joint leave should not be granted to father and mother. However, the father could be granted leave if the mother is not strong enough to take care of the child.
Namibia. NUNW: Yes.
Netherlands. In the Netherlands, it is considered important that both the father and the mother are entitled to parental leave. Dutch law also provides for "calamity leave", which may be used in emergency situations, such as the sudden illness of a child.
FNV: Non-transferable parental leave for both parents individually should be provided as in the European Union Directive (96/34/EG). Non-transferable individual parental leave is consistent with the recognition of the need to create effective equality of opportunity and treatment between men and women with family responsibilities as in Convention No. 156.
New Zealand. It is not appropriate to have a prescriptive instrument in relation to this matter.
Nicaragua. Cases should be considered individually.
Oman. There is no reason for the national economy to assume further burdens.
Pakistan. At least mothers and, if possible, fathers should be entitled to parental leave after the expiry of maternity leave to look after their children.
Papua New Guinea. When both parents are required to visit hospital or doctor.
Peru. CUT: Yes. Parental leave rights should be provided in other instruments, but in the meantime they may be considered here.
Portugal. CIP: The possibility of establishing leave for fathers should be left to the legislation of member States, taking into account the diversity of social and cultural values.
UGT: The Recommendation should include parental leave for a period following maternity leave. It should increasingly link workers' professional responsibilities with their family responsibilities.
Qatar. The mother, and in accordance with national laws and regulations.
Romania. Parental leave should be provided through special legislation.
Russian Federation. National law provides for parental leave which may also be taken by other relatives who are in fact caring for the child.
Saudi Arabia. Depending on national legislation.
South Africa. BSA: No.
Spain. This should be incorporated into the Convention or Recommendation, as parental leave is closely linked to maternity protection.
Suriname. ASFA: On a doctor's advice.
Sweden. See General Observations. The Convention should include provisions on parental leave and parental benefits in a separate part.
Togo. None the less, the father should have the right to paternity leave, the length and conditions of which are determined by national law and practice.
Trinidad and Tobago. ECA: Only under extreme circumstances.
Tunisia. As far as the circumstances of the enterprise permit.
Turkey. The leave may be without pay.
TISK: No.
United Kingdom. Such leave should be provided to both parents during the early years of a child's life.
United States. Without an entitlement to pay.
Venezuela. CTV: No.
Zimbabwe. Only on medical grounds related to the mother's or child's welfare and prescribed by a medical doctor or nurse.
ZCTU: When the need arises.
A majority of replies supported this new provision, given the importance attached to enabling workers to reconcile their professional lives and their family responsibilities. Some replies considered the provision of sufficient importance to include it in the Convention, rather than the Recommendation. Others questioned whether an international instrument on maternity protection should deal with this issue, recalling that the Workers with Family Responsibilities Recommendation, 1981 (No. 165), provides for the possibility of such leave. Paragraph 22(1) of Recommendation No. 165 states that: "Either parent should have the possibility, within a period immediately following maternity leave, of obtaining leave of absence (parental leave), without relinquishing employment and with rights resulting from employment being safeguarded."
Several replies considered that parental leave should be determined by national legislation or collective agreements, given that it supplements the minimum standards established in the context of maternity protection. A number noted that the possibility of providing such leave was dependent on the circumstances of individual member States.
A number of replies questioned the scope of this provision, in particular, who would be eligible to take parental leave. Thus, the provision has been reworded to clarify its application to the employed woman or the employed father of the child. It is included as Point 25(1) of the Proposed Conclusions.
The Office notes that the inclusion of parental leave provisions marks a departure from the main thrust of the new instruments, which provide maternity protection for employed women with regard to childbearing, rather than childrearing.
Qu. 28(2) |
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Should the period during which parental leave might be granted, the length of the leave and other modalities, including the payment of parental benefits, the use and distribution of parental leave between the employed parents, be determined by national laws or regulations or in any manner consistent with national practice? |
Total number of replies: 94.
Affirmative: 74. Argentina, Austria, Barbados, Belarus, Belgium, Benin, Botswana, Bulgaria, Cameroon, Central African Republic, Chile, Colombia, Costa Rica, Croatia, Cyprus, Czech Republic, Denmark, Ecuador, Egypt, Estonia, Ethiopia, Finland, France, Germany, Greece, Guyana, Honduras, Hungary, India, Islamic Republic of Iran, Italy, Jamaica, Jordan, Kenya, Republic of Korea, Kuwait, Latvia, Lithuania, Luxembourg, Mali, Mauritius, Mexico, Republic of Moldova, Mozambique, Netherlands, New Zealand, Nicaragua, Norway, Pakistan, Papua New Guinea, Philippines, Poland, Portugal, Romania, Russian Federation, San Marino, Slovakia, Slovenia, Spain, Sri Lanka, Suriname, Switzerland, Tajikistan, Togo, Trinidad and Tobago, Tunisia, Turkey, Ukraine, United Arab Emirates, United Kingdom, United States, Venezuela, Viet Nam, Zimbabwe.
Negative: 14. Australia, Bahrain, Brazil, Chad, China, Comoros, Ghana, Malaysia, Namibia, Oman, Peru, Seychelles, Syrian Arab Republic, Thailand.
Other: 6. Congo, Cuba, El Salvador, Lebanon, Qatar, Saudi Arabia.
Argentina. CGT: National legislation should lay down minimum provisions and collective agreements should deal with the detailed provisions appropriate to different types of work.
Australia. This provision should be covered by Convention No. 156 and Recommendation No. 165.
ACTU: Yes.
Austria. The Recommendation should only lay down the minimum requirements (e.g. minimum duration of parental leave, protection from termination of employment and dismissal, the right of return, social security protection, financial benefits). The requirements and procedures applying to parental leave should, however, be left to member States.
Azerbaijan. Azerbaijan Trade Unions Confederation: Yes.
Canada. CEC: Yes.
CLC: Yes.
Central African Republic. Taking into account national realities and the specific characteristics of each branch of activity.
Chile. Such legislation should make clear the possible use of leave by both parents.
Congo. They should be determined by collective agreement.
Croatia. All modalities of use and distribution of parental leave should be regulated by national legislation.
Cuba. National legislation makes no provision for the father's right to parental leave.
Czech Republic. „MK OS. The Convention or the Recommendation should stipulate- only the length of parental leave and leave to national legislation the question of parental- allowances.
Dominica. CSA: Yes.
DAWU: In a manner consistent with national practice.
DTU: In a manner consistent with national practice.
WAWU: Yes.
Ecuador. Preferably by legislation.
CONAMU: Yes. In countries where this is not determined by national laws or regulations, the State should be urged to support and promote it.
Egypt. On condition that leave is only granted to the mother and national laws and regulations may determine whether benefits are paid.
Egyptian Trade Union Federation: No.
El Salvador. Subject to the presentation of a medical certificate and determined in accordance with the relevant national legislation.
Ethiopia. National legislation should state that this matter should be handled by collective agreement or in any manner that the two parties agree upon.
Germany. BDA: No. See 28(1).
Ghana. NCWD: Yes. Minimum standards should be set at the international level.
TUC: Yes.
Honduras. COHEP: This should be determined by legislation, after being first established through practice (collective agreement).
India. Bharatiya Mazdoor Sangh: No. The minimum benefits to be extended should be determined in the Recommendation as guidelines to Members.
National Front of Indian Trade Unions: It should be determined by national law to ensure uniform practice.
Islamic Republic of Iran. National regulations should guarantee compliance.
Iraq. General Federation of Trade Unions: Yes. Only the mother.
Italy. CONFINDUSTRIA: Should be handled through collective bargaining or national legislation.
Jordan. Amman Chamber of Industry: Yes. Consider the situation of husband and wife working in the same enterprise.
Japan. JTUC-RENGO: Yes.
Lebanon. National laws should determine the duration of the leave and benefits.
Lithuania. Lithuanian Workers' Union: Yes. Provisions must be contained in national legislation.
Malaysia. MTUC: Not applicable in Malaysia.
Morocco. FCCIS: Yes.
CDT: Yes.
Mozambique. A written law provides greater protection for workers' rights.
Namibia. NEF: Yes.
NUNW: Yes.
Netherlands. FNV: No.
Nicaragua. Also through collective agreement.
Norway. These rights are statutory in Norway.
Pakistan. All parental benefits must be determined through national law and practice.
Peru. Should be left to national law and practice in each member State.
CUT: Yes.
Portugal. By national legislation.
UGT: To be determined by domestic legislation, following consultation between the bodies most representative of workers and employers.
Qatar. Any leave granted to the mother following the expiry of the maternity leave should be determined by national laws or regulations.
Romania. National Council of Private Small and Medium-sized Enterprises: Yes. The instruments adopted by the European Union should also be taken into account.
Russian Federation. The parents or other relatives who take care of child should enjoy all the rights provided by legislation. The minimal (guaranteed) duration of leave to take care of child, as well as amount of the benefit, should be fixed by national legislation.
Saudi Arabia. Depending on national legislation.
Slovakia. Parental leave should be granted in accordance with national legal regulations.
Spain. Provision for this right should be made in either the Convention or the Recommendation.
Togo. If the principle of parental leave is adopted, the conditions for such leave should be determined by national law.
Trinidad and Tobago. ECA: No.
Tunisia. By national legislation.
Turkey. TISK: No. Parental leave following the expiry of maternity leave would be inconsistent with the objective pursued in the Maternity Protection Convention. The Convention aims to provide the necessary environment for ensuring a healthy period of confinement for mother and child and provides only for maternity leave in that context. Provisions in the Recommendation with a view to granting parental leave, for which no provision is made in the legislation of the vast majority of member States, would make the two international instruments inconsistent.
Ukraine. Working parents should be granted the right to determine independently between themselves the use and distribution of the parental leave.
United Kingdom. The EC Parental Leave Directive provides for these issues to be determined by individual member States, subject to a minimum of three months' parental leave for both parents, to be taken before the child is eight.
United States. The minimum time permitted for parental leave should be set forth in national law so as to secure a uniform entitlement applicable for all working citizens. However, the expansion of this minimum time by state and local laws, as well as by the individual employers, should be permitted. In the United States, other jurisdictions often provide more generous parental leave benefits than those addressed at the federal level.
Uruguay. National Chamber of Commerce and Chamber of Manufacturers: Yes.
Venezuela. National legislation and programmes should include relevant provisions.
CTV: No.
Zimbabwe. After consultation with employers' and workers' organizations.
A strong majority of replies supported this further provision on parental leave. Similar issues were raised with regard to duration of leave and entitlement to income replacement as those discussed in the summaries above. Only a few replies urged that the minimum requirements for such leave be included within the instrument itself. Several replies noted Council Directive 96/34/EC concerning the framework agreement on Parental Leave recently adopted by the European Community. Many replies asserted that the modalities of parental leave should be established through national laws and regulations, collective agreements or national practice.
Point 25(2) of the Proposed Conclusions has been drafted in accordance
with the majority views.
Qu. 29 |
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In case of sickness, hospitalization or death of the mother of a newly born child before the expiry of her postnatal leave, should the employed father of the child be entitled to take leave of a duration equal to the unexpired portion of the postnatal maternity leave? |
Total number of replies: 99.
Affirmative: 72. Angola, Argentina, Austria, Barbados, Belarus, Belgium, Benin, Botswana, Brazil, Bulgaria, Cameroon, Central African Republic, Chad, Chile, China, Colombia, Congo, Croatia, Cyprus, Czech Republic, Denmark, Ecuador, El Salvador, Estonia, Ethiopia, Finland, France, Germany, Greece, Guyana, Honduras, India, Islamic Republic of Iran, Italy, Jamaica, Jordan, Kenya, Republic of Korea, Kuwait, Latvia, Lithuania, Luxembourg, Mauritius, Republic of Moldova, Mozambique, Morocco, Namibia, New Zealand, Nicaragua, Oman, Pakistan, Papua New Guinea, Poland, Portugal, Romania, San Marino, Slovakia, Slovenia, South Africa, Suriname, Sweden, Switzerland, Syrian Arab Republic, Tajikistan, Trinidad and Tobago, Turkey, Ukraine, United Arab Emirates, Uruguay, Venezuela, Viet Nam, Zimbabwe.
Negative: 15. Australia, Bahrain, Comoros, Egypt, Ghana, Lebanon, Malaysia, Netherlands, Peru, Philippines, Russian Federation, Sri Lanka, Thailand, Togo, United States.
Other: 12. Canada, Costa Rica, Cuba, Hungary, Japan, Mexico, Norway, Qatar, Saudi Arabia, Spain, Tunisia, United Kingdom.
Angola. If the father replaces the mother as the caretaker.
Argentina. CGT: Yes. Given that fathers may be required to take over the mother's role.
Australia. If the aim of the Convention is to protect the mother's health, then her partner should use other special leave, such as parental leave or carer's leave, as suggested in Recommendation No. 165.
ACTU: Yes.
Azerbaijan. Azerbaijan Trade Unions Confederation: Yes.
Brazil. CNC and CNI: No. This event should be left to collective bargaining, rather than being regulated by law.
CNF: No.
Canada. While no jurisdiction has provisions at this time to allow the father to take any portion of the maternity leave, the father could receive parental leave in all jurisdictions, except Alberta.
CLC: Yes. Father or partner.
Chile. In the event of less serious sickness, it should be a medical practitioner who is responsible for determining whether a mother's state of health is incompatible with caring for her child.
China. "Sickness" should be restricted to contagious cases or those where patients cannot take care of themselves. Otherwise, all employed fathers would be entitled to take such leave de facto.
Congo. To allow him to care for the child. Could be extended to allow an adjustment period with the newborn.
Costa Rica. Given that this provision goes beyond the minimum guarantees for the health of the mother and child, it should be left to national legislation in each member State.
Cuba. Our legislation makes no provision for the father's right to parental leave.
Czech Republic. Yes, and the extension of this right to other persons also.
Denmark. LO: This should be included in the Convention.
Dominica. CSA: Yes.
DAWU: Yes.
DTU: Yes. But only in the case of death should the father be entitled to the remaining portion of the leave with no loss of his rights from his employer.
WAWU: Yes. Or even extended leave.
Ecuador. All of the mother's rights should be transferred to the father in the event of the mother's death during or after childbirth when the child survives; or if the child's life or health is at risk.
CONAMU: In such cases, the father should be entitled to the financial benefits to which the mother was entitled and to any other benefits that may apply.
Egypt. Egyptian Trade Union Federation: Yes.
Ethiopia. The father should be entitled to his normal leave or other types of leave.
Finland. The father's right to take care of the child(ren) should be possible irrespective of the mother's condition.
TT, LTK, Federation of Finnish Enterprises and KT: No. It is sufficient if the father is entitled to parental leave.
France. CNPF: No.
Germany. Such a special provision does not come under maternity leave, but under parental leave.
BDA: No.
DGB: No. Maternity leave is intended to protect the mother's health and therefore should not be granted to the father. Other leave options should be available, e.g. parental leave.
Ghana. NCWD: Extended leave should be allowed for the father or for the mother if the husband dies during that period.
GEA: No. To ensure that the period for maternity is not exceeded.
TUC: Yes. To supervise the care of the child.
Guyana. Not necessarily equal to the unexpired portion. Duration should depend on individual circumstances.
Honduras. In order to care for the child.
COHEP: Leave should be granted, but not on the basis of maternity leave. Individual social conditions need to be considered.
Hungary. Child-care leave may be granted to the father in such instances.
India. HMS: The mother should be invested with the right to choose someone other than the father to care for the child in the event of her sickness, hospitalization or death.
Indonesia. APINDO: No. Maternity leave is for the mother.
Iraq. General Federation of Trade Unions: No.
Italy. CONFINDUSTRIA: Should be handled through collective bargaining or national legislation.
Japan. This should not be included in the new Recommendation. See Question 28(1).
JTUC-RENGO: Yes.
Jordan. Amman Chamber of Industry: Yes. But subject to the enterprise system where the husband works.
Federation of Jordanian Chambers of Commerce: No.
Kenya. However, only if the two parents are working for the same employer. It would be difficult to transfer the benefit to a different employer.
Malaysia. MEF: No. Such leave is personal to the woman employee.
MTUC: Not applicable in Malaysia.
Mauritius. Only in case of the mother's death.
Mexico. Such leave could be granted to the father through collective agreement.
Morocco. FCCIS: To be negotiated.
Mozambique. A father should be entitled to paternity leave in the event of the death of the child's mother during the maternity leave.
Namibia. Provided that the father cares for the child.
New Zealand. There is no need for a specific prescription as to how this additional leave would be granted.
Norway. Under national legislation, the father can take over the unreserved portion of maternity leave not taken by the mother, irrespective of the mother's reason for not taking it. In the cases mentioned, the father may take over the remainder of the allowance period.
Oman. This leave should be undetermined and dealt with on a case-by-case basis through national legislation.
Pakistan. In case of death of the mother.
Papua New Guinea. As long as it is confirmed in national laws and regulations.
Peru. CUT: Yes.
Philippines. Maternity leave is non-transferable.
Portugal. Illness and hospitalization justify different approaches. The maternity leave being broken, it should be resumed after discharge. The father should be entitled to that part of the leave which exceeds the mandatory period to be taken by the mother if both parents agree.
UGT: The Convention must include the right to paternity leave, not only in the cases mentioned, but also by mutual decision of the couple. Apart from the period of physical and mental recuperation from confinement, the remaining period of leave should be taken by the mother or the father on the basis of their joint decision.
Qatar. In such cases, the father should be entitled to an emergency leave that is not related to the maternity leave.
Romania. In special cases, if the newborn's mother is not available, the father should have such a right to leave and to cash benefits.
Russian Federation. Recovery after pregnancy is the main rationale of the postnatal leave. Thus the right for such leave may only cover one person. Nevertheless, in the cases of illness or death of the mother, a right to child-care leave should be granted to another family member.
Saudi Arabia. Depending on national legislation.
South Africa. This is a detail that need not be included in the Recommendation.
BSA: No. Should be left to individual collective bargaining.
Sweden. The same applies to any other close relative, etc., if the father is absent or is incapable of looking after the child.
Togo. Special leave could be granted to the employed father, but not as postnatal leave.
Tunisia. The father could take leave to care for the child, but not as part of his wife's maternity leave. Postnatal leave is provided only to women.
Turkey. TISK: No. Rather than transferring the maternity leave to the father, the Recommendation could include provisions which are not related to maternity leave, but which provide for the healthy development of the child, particularly after the death of the mother.
United Kingdom. Maternity leave is a health and safety measure which is a specific right for mothers and therefore non-transferable. However, the right to parental leave and time off for urgent family reasons could allow the father time off in such circumstances.
United States. The leave should not be limited in this way. The father may not work for a company that provides the same leave benefits as those offered by the mother's employer, or may qualify for an independent entitlement under law.
AFL-CIO: Yes.
Zimbabwe. This should be included in the Convention.
The majority of replies supported inclusion of this new provision within the Recommendation. It was seen as an important guarantee for the care and well-being of the child. Several replies qualified their support by suggesting, for example, the need to clarify the term "sickness"; to limit the entitlement to instances in which the mother dies; to expand the scope of persons entitled to take parental leave; to provide for this right only to a father who actually takes on the role of principal care giver; or to allow the employed father extended leave to which the mother would be entitled. However, no consensus appeared to emerge with respect to any of the suggestions mentioned. A number of replies asserted that this entitlement should be determined by national legislation and regulations or collective bargaining.
A number of governments and employers' organizations reasoned that the purpose of maternity leave was to enable a woman to recover from childbirth and that the right was thus non-transferable. There was, however, still support for an entitlement to a period of leave for the father in the form of parental leave, paternity leave, or emergency leave.
This provision has been included as Point 26 of the Proposed Conclusions to reflect the majority view.
V. Special problems
Qu. 30 |
|
(1)Are there any particularities of national
law or practice which, in your view, are liable to create difficulties
in the practical application of the international instrument(s)
as conceived in this questionnaire? |
Paragraph 1:
Total number of replies: 96.
Affirmative: 39. Algeria, Argentina, Australia, Barbados, Belgium, Benin, Botswana, Canada, Chile, China, Cuba, Cyprus, Ecuador, Egypt, Ethiopia, Ghana, Greece, Kenya, Republic of Korea, Mali, Mauritius, Mexico, Mozambique, New Zealand, Oman, Papua New Guinea, Peru, Philippines, Qatar, Romania, Sri Lanka, Switzerland, Thailand, Togo, Tunisia, Turkey, United States, Venezuela, Viet Nam.
Negative: 48. Angola, Austria, Belarus, Brazil, Bulgaria, Cameroon, Central African Republic, Chad, Colombia, Comoros, Congo, Costa Rica, Croatia, Czech Republic, El Salvador, Estonia, Finland, France, Germany, Guyana, Honduras, Islamic Republic of Iran, Italy, Jamaica, Kuwait, Latvia, Lithuania, Luxembourg, Malaysia, Republic of Moldova, Morocco, Namibia, Pakistan, Portugal, Russian Federation, Saudi Arabia, Seychelles, Slovakia, Slovenia, South Africa, Spain, Suriname, Syrian Arab Republic, Tajikistan, Trinidad and Tobago, Ukraine, United Arab Emirates, Uruguay.
Other: 9. Denmark, Hungary, India, Japan, Jordan, Lebanon, Netherlands, United Kingdom, Zimbabwe.
Paragraph 2:
Total number of replies: 38. Algeria, Angola, Australia, Belgium, Benin, Botswana, Chile, China, Cyprus, Ecuador, Egypt, El Salvador, Ethiopia, Ghana, Hungary, India, Jordan, Kenya, Republic of Korea, Lebanon, Mali, Mexico, Namibia, New Zealand, Oman, Papua New Guinea, Peru, Portugal, Romania, Sri Lanka, Thailand, Togo, Tunisia, Turkey, United States, Venezuela, Viet Nam, Zimbabwe.
Algeria. Parental leave is not foreseen in national legislation. It should be left to collective bargaining.
Angola. The instruments must be flexible.
Argentina. Our national legislation does not provide for parental leave.
Australia. A prescriptive minimum standard approach to maternity leave would be incompatible with Government policy. The particularity of Australia's social security system may also present a problem. Insurance-based cash benefits are not applicable to Australia. More flexibility is required in the provisions addressing other avenues of benefits, including publicly funded social security as a mainstream source. See comments to earlier questions.
ACTU: No.
Azerbaijan. No.
Barbados. The following areas, considered desirable for inclusion in the Convention, would require changes to current national law and practice: extension of prenatal leave in case of complications; additional employment protection following return to work after expiration of maternity leave; and extension of postnatal leave where a newborn has special needs. Additional leave has implications for labour costs, including potential discrimination against women of childbearing age if employers reduce labour costs by employing males or older women. Current laws do not provide redress for discriminatory legislation. Questions 26, 28 and 29 are desirable features for a Recommendation, but would require cultural adjustments. For Questions 28 and 29, the merits of each case need examination.
BWU: No.
Belgium. If the Convention is too precise regarding (a) extensions of leave for medical reasons being considered as maternity leave, and (b) the types of facilities provided, i.e. for nursing. These provisions should be divided differently between the Convention and the Recommendation.
Benin. In practice, not all employed women are protected in case of maternity, in particular due to the non-coverage of the informal sector. The revision of the texts is important, but the economic situation of the country should be carefully considered. Also, the informal sector should be structured.
COSI: Yes.
Botswana. No provision for parental leave. No provision for social assistance/insurance funds. Revision of the national legislation and regulations to accommodate these particularities, and introduction of a social security scheme would be needed.
Brazil. CNC and CNI: In Brazil, discussions are under way on making industrial rights more flexible, therefore regulations over and above a minimum level should be left to collective bargaining.
Canada. The scope of the Convention is likely to continue to be a problem for Canada, especially with respect to coverage of agricultural workers, some homeworkers, some domestic workers, contract workers, and casual and temporary employees. A provision to the effect that the Convention would apply "in accordance with national law and practice" would enable Canada to ratify this Convention. No jurisdiction provides full salary replacement provisions or an extension of the maternity leave in cases of multiple births or single mothers. Some jurisdictions would currently not be able to comply with provisions regarding nursing breaks and on-site nursing facilities. The cost of medical services (including dental care and midwifery) will be an issue for many countries.
CLC: No.
Chile. Specific standards will be needed to address atypical forms of employment, such as seasonal work, home work, domestic work, subcontracting or in cases where the employer's identity is unclear. The solutions differ because they involve adaptations of labour standards in the light of various atypical forms of employment.
CPC: No.
China. There are no universal criteria concerning maternity-related illnesses. Medical expenses are difficult to control. Laws and regulations governing maternity insurance are difficult to apply. Also, China does not yet have the economic capability to grant parental leave and benefits in addition to maternity leave. Criteria concerning maternity-related illnesses should be formulated as soon as possible. The provision concerning parental leave should be elective so that member States may or may not accept it.
Cuba. With respect to nursing breaks, our laws are based on medical views and on specific circumstances. There is no tradition of a father's right to parental leave, although administrative departments are authorized to evaluate any worker's request for leave on personal grounds.
Cyprus. Medical benefits in Cyprus are means tested and are provided to women whose family income is below a prescribed level, except for certain occupational categories (e.g. civil servants, employees of semi-governmental organizations). This could be met by stipulating that coverage can be satisfied for the purposes of the Convention if a certain percentage of women are entitled to the benefits in question.
Denmark. Some of the provisions are very detailed and that will make it difficult to reach consensus. Refer to the comments on individual questions.
Dominica. DAWU: (1) Party political allegiance and affiliation. (2) The constitution should provide that an independent body deal with such a matter.
DTU: (1) The economic cost, size of enterprises and number of persons employed therein; exploration of scope and new areas for national development; appropriate work ethics; encouragement of mergers and expansion in trade and commerce. (2) Constant review of employment policy and frank and open discussions on method of employment strategy between government, employers and trade unions are needed.
WAWU: (1) The view that only mothers take care of babies. (2) Those concerned should be educated, including children.
Ecuador. Difficulties remain regarding the slow pace of legislative reform. If benefits are increased, women may suffer discrimination. A dialogue with the legislative powers is essential. No other form of pressure is possible.
CONAMU: The State promotes the principle of joint parental responsibility and the protection of heads of households, both of which have been approved as constitutional amendments by the Constituent National Assembly. The new Convention should include definitions and extend the scope of application to "men" and their sons/daughters to implement the principle of joint parental responsibility.
UGTE: (1) Different types of contracts, such as part-time contracts; in-bond industry regulations; lack of security of women employed in domestic service. (2) Legislating to ensure that all employment contracts provide real legal security, and guaranteeing the enjoyment of other collective labour rights to ensure respect for the individual rights of women workers.
Egypt. Particularities could be met by crediting parental leave to the mother only, and specifying that the term "woman" means the married woman, whose marriage had been officially registered and legally recognized, and the term "child" means the legitimate child born of a legal marriage.
Egyptian Trade Union Federation: Retaining the current definitions of "woman" and "child", and providing parental leave may create difficulties, given that Egyptian legislation, regulations and practice make no such provision.
El Salvador. These benefits are established by national legislation respecting social security institutions, but there is a problem in extending benefits to other persons covered by State institutions. Clear legislation should be drafted to provide effective application of these international instruments to resolve legal difficulties.
Ethiopia. Most maternity-related issues are economic issues. Employers may not implement them and employment opportunities for women may be reduced. Labour consultancy and educational programmes should be provided to both social partners. Professional advice on collective bargaining negotiations could also resolve the mentioned difficulties.
CETU: No.
Finland. TT, LTK and Federation of Finnish Enterprises: National provisions and practices vary so much that, on the whole, a Convention is not a suitable instrument.
France. CNPF: Aim for a minimum of protection. Do not try to align the Convention with the optimal level of protection provided in particular national legislation. Do not try to target all particular cases. The questionnaire does not distinguish sufficiently between the minimum protection which can be provided through national legislation and that which can be determined through collective bargaining.
CFDT: The system of social protection may leave aside those who have lost their jobs as well as the long-term unemployed. Put in place a system of universal social protection.
Germany. BDA: The distinction between a woman employee's sickness and complications relating to pregnancy is not made sufficiently clear in the Convention and Recommendation.
Ghana. Currently, Ghanaian law does not provide for parental leave or for the father to use the unexpired portion of postnatal leave. It will be difficult to implement.
NCWD: Laws are not strictly adhered to in the private and informal sectors. Monitoring is required and appropriate fines instituted. Also rewards for compliance are needed to induce and promote compliance, e.g. tax shelters.
GEA: (1) Absence of a national insurance scheme and public funds to assist pregnant women. (2) The nation must create a national insurance scheme and publicly funded assistance to be able to ratify and implement this Convention.
TUC: Paternal leave will be difficult to implement due to the practice of polygamy in Africa.
Greece. Problems could arise if new provisions conflict with national measures taken to conform with EU Directive 92/85/EEC, given the difficulties encountered during the consultation with the social partners and those responsible for social security.
Honduras. COHEP: Leave for men under such circumstances is not part of our tradition. Awareness-raising and education are needed.
Hungary. The development of employment and social policies is subject to present economic necessities. Social policy must be harmonized with economic policy, which must be defined in view of the international commitments of the country. The present Convention and Recommendation alone cannot resolve these problems.
India. Coverage of maternity protection in different sectors of the economy should be made flexible so as to enable national governments to extend the coverage in a phased manner.
Bharatiya Mazdoor Sangh: Implementation in every establishment is difficult. Every pregnant employee must inform the authorities about whether she received her benefits; every employer must inform the authorities about benefits distribution.
HMS: In India, maternity leave is given to women who have worked for 80 days and in establishments that employ more then ten employees. Employers employ only a few workers- to avoid paying maternity benefits. Restrictions must be removed to make maternity leave available to all women employees. Employers should be given a more severe punishment for violations.
INTUC: A separate clause for developing countries should ensure enforcement by law.
National Front of Indian Trade Unions: New national legislation will have to be passed after discussion with employers' and workers' organizations.
Indonesia. APINDO: Responsibility for day care: Cash benefits as a substitute for medical benefit.
Iraq. General Federation of Trade Unions: No.
Japan. It is not a problem unique to Japan, but the Convention and the Recommendation should both be sufficiently flexible so that they can be applied while considering the actual situation in each country.
Jordan. Difficulties might arise, but each case is ruled by special conditions and circumstances. These should be resolved through agreement between the employed woman and the employer.
General Federation of Jordanian Trade Unions: No.
Kenya. The maternity leave period is long and most national laws do not provide for paternity leave. The instrument(s) should be made very flexible.
Republic of Korea. In the Republic of Korea, the maternity leave is shorter than 12 weeks and only employers are burdened with the expenses. Tripartite agreements should be reached and relevant national laws and regulations amended to conform to international standards. A continuous effort to reach a labour-management agreement on the possible amendment of labour laws will be made. The Government is reviewing the possibility of cost-sharing by the social insurance system, such as health insurance or employment insurance.
Lebanon. (1) Proposed duration of maternity leave will be a problem. In Lebanese law, leave does not exceed ten weeks, inclusive of confinement. Lebanese law does not provide for certain proposals. The proposal to allow member States to exclude limited categories of employed women or enterprises, where application to them would raise special problems of a "substantial nature", is problematic because this term may mean different things in different countries. Establishment of appropriate facilities, such as nurseries, and new benefits provided depend upon an individual State's ability to secure same. (2) Revision of applicable Lebanese legislation and consideration of the financial implications of measures on government and institutions. Studies will be required by government departments and production sectors on social and financial aspects. New maternity leave formula enabling a majority of States to ratify the instruments, unless failure to ratify relates to other substantial considerations. Convention No. 103 was not widely ratified because of the obligations it imposed. Such difficulties should be avoided for the new instruments. Reference to the relationship between Convention No. 103 and the new Convention should be made in the preamble.
Lithuania. Centre of Lithuanian Trade Unions: Length of leave, amount of payment.
Malaysia. Not as long as the provisions of the proposed Convention are flexible.
MAPA: The international instrument is overly generous in relation to current law or practice, and fails to consider the economic level of development and social peculiarities of each State. The Convention should not be too restrictive.
Mali. (1) The state of development of our health system and the level of benefits available through social security. (2) Provide for a gradual application of the Convention.
Mauritius. Parental leave is not prescribed and the state of the country's economy does not allow for the adoption of such leave.
MEF: (1) Current national legislation does not stipulate a time period for nursing an unweaned child. (2) Specify a time limit for nursing.
Mexico. (1) During maternity leave, the working mother obtains a cash benefit equivalent to 100 per cent of her salary. In case of extension, the subsequent leave is considered to be sick leave and the cash benefit amounts to only 60 per cent of the worker's salary. Mexican legislation makes no provision for any type of paternity leave. Provisions are only made for parents to take sick leave. Any type of parental leave is determined through collective bargaining. (2) The Recommendation should provide for the possibility of a reduced benefit, in accordance with national legislation.
Morocco. Inclusion of other categories of women workers, such as those in the informal sector and self-employed women, may create some difficulties. This problem is likely to arise mainly in countries that have social protection systems covering only those employees who work in the formal sector on the basis of legally defined employment contracts. To enable such countries to ratify the Convention, provide for the possibility of excluding categories of workers not covered by their national legislation.
FCCIS: Take into account the particular characteristics of sectors.
CDT: (1) The opposition and the behaviour of employers in SMEs; weakness in labour inspection. (2) Reinforce labour inspection. Encourage enterprises to respect labour legislation, especially with regard to the rights of women workers. Encourage the establishment of child-care centres. Encourage the training of female labour inspectors responsible for ensuring that the rights of women at work are respected.
Mozambique. The material and financial conditions to apply the Convention do not exist in our country. Differences in the periods of maternity leave.
Namibia. Maternity benefits should not include medical benefits. Cash benefits should be paid to women who qualify and contribute. The latter should be provided under another scheme.
NUNW: (1) The issue of maternity leave under social funds, when benefits lapse because of lack of contributions. (2) The Government should ensure benefits are covered during the period of maternity leave.
Netherlands. See Question 16(2).
New Zealand. (1) There is no compulsory contributory social insurance scheme in New Zealand, and the universal coverage provided is taxation-funded social security benefits that are means tested. (2) Developing instruments that provide general guidance and principles, rather than imposing specific technical requirements, would allow the maximum number of countries to abide by the intent of the instrument, while retaining the flexibility for national law and practice to determine the details of application of the principles. Any standard must accommodate the diverse circumstances of member States.
NZEF: The apparent insistence on the need for a compulsory, contributory social insurance scheme is problematic. Benefits of parental leave should be available to all eligible employees, regardless of the enterprise size or any other possible inhibiting factor. In-- come maintenance is available from general taxation for any employees for whom this may be necessary.
NZCTU: The New Zealand Government's preference for taxpayer-funded social security benefits that are means tested simply does not deliver the financial security envisaged by the proposed Convention.
Oman. The trend towards longer leave conflicts with the interests of employers, as this negatively affects productivity. This may be settled through national legislation, but the circumstances of each case must be examined separately.
Papua New Guinea. (1) Adequate medical cover for all working women; government support in superannuation for working women. (2) Compulsory medicare or superannuation for working women.
Peru. Current Peruvian labour legislation covering the private sector does not provide for a nursing period, nor does it regulate parental leave. These can be addressed through a thorough interpretation of legislation in force. National legislation allows the combination of prenatal and postnatal leave with any remaining annual leave to enable the woman to take up to 120 days of leave following childbirth. This is the period during which nursing is of great importance.
CUT: First, the current period of employment protection of 90 days before and 90 days after childbirth is inappropriate. To discourage dismissal, the period of protection should cover the full nine months of pregnancy and not less than six months following childbirth. Second, it is difficult for workers to prove that dismissal was due to pregnancy.
Philippines. It may be difficult to comply with the 12-week leave period provided in the Convention. Existing law provides a shorter duration. Proposals to extend maternity leave have had to be examined vis-à-vis the issue of more protective measures for women and the consequent reluctance of employers to hire women. A balance should be achieved as the State tries to ensure the safety and health of women workers in the workplace. If this means added costs beyond tolerable limits for the employer, the consequence would probably be reluctance to hire women.
Poland. OPZZ: No.
Portugal. Under Portuguese law, there is no difficulty in implementing the Convention as suggested in the questionnaire. The obligation to periodically examine the possibility of increasing the duration of maternity leave may create unwarranted expectations and constitute a source of conflict. That provision should be shifted to the Recommendation.
CIP: Possible difficulties in the application of an international instrument in this area relate to the need for flexibility demanded by enterprises and harmonizing this with social aspects which transcend the aims and objectives of enterprises.
UGT: There is no legal requirement for employers to create onsite nursing facilities. Despite some collective agreements, there is no provision for feeding in general, only breastfeeding. The extension of maternity/paternity leave to single mothers is not yet included in our legislation.
Qatar. The instrument applies to cases of childbirth outside marriage; to unmarried mothers; and entitles fathers to parental leave.
Romania. National legislation is still subject to proposed improvements and harmonization within the association agreement concluded between Romania and the European Union. Practical application of national legislation or international instruments is still deficient, due to the lack of an efficient system for distributing information on women's rights to maternity benefits. Anticipated social insurance and health insurance systems will ensure the legal framework of a partnership between the insured party, who will be fully informed of her rights via the insurance contract, and the bodies that manage the funds.
National Council of Private Small and Medium-sized Enterprises: No.
South Africa. BSA: The particular problems of SMEs, the position of key staff, and the need to create jobs. If rules and regulations make it too onerous and expensive to employ women of childbearing age, they might be sidelined. Enterprises might mechanize sooner than would otherwise be the case.
Spain. CCOO: Yes.
Sri Lanka. Maternity benefits are determined by the national law, which does not cover workers in some sectors. Some provisions of the Convention have not been incorporated into national law. These particularities might be met by amending the national laws according to the provisions of the Convention and excluding some sectors of the economy in ratification of the Convention.
Switzerland. Switzerland is currently unable to ratify Convention No. 103. A draft law regarding maternity insurance is currently being examined in Parliament.
Thailand. (1) National law and practice have imposed limitations to maternity benefits. During times of economic crisis, additional protection, if any, would have negative employment implications for employed women. (2) The benefits would be provided in the social security system and contributions allocated by employer and employees, on a voluntary basis in a proper proportion.
Togo. National law and practice would have to be adapted to the provisions of the instruments.
Tunisia. (1) National legislation only grants benefits to married women and children born within marriage. Maternity leave in Tunisia is less than 12 weeks, but varies considerably between the public and private sectors. In the private sector, after the first 15-day extension, subsequent extension periods are considered sick leave. Tunisian legislation provides mothers only with leave to care for an infant. (2) By taking into account the specific characteristics of different societies, such as Muslim societies. Consider the social security systems of developing countries, which have difficulty granting cash benefits equal to two-thirds of income for 12 weeks.
Turkey. (1) Any leave with pay beyond the prescribed period of maternity. Employment protection. (2) By a more flexible wording of the text.
TÜRK-IÔ: There are deficiencies with respect to the rights of the father of the newborn child. When the number of workers is specified for supplying nursing facilities, the total number of workers, rather than the number of women workers, should be taken into consideration.
United Kingdom. The maternity protection measures must be compatible with European Community law in this area, with European equal treatment legislation and with sex discrimination legislation in the United Kingdom.
United States. (1) Some of the rights contemplated in the proposed instruments go beyond the scope of current national laws. The United States has laws designed to protect individual choice in the areas of maternity and sick leave, as well as protecting pregnant employees who desire or need maternity leave. In the United States, issues involving maternity leave are addressed by the equal employment opportunity laws and the Family and Medical Leave Act. With regard to pregnancy or disability, the basic principle of the EEO laws is that an employer may not discriminate against employees or applicants for employment on either of these two bases. Women affected by pregnancy, childbirth or related conditions must be treated the same as (not better than) other employees or applicants on the basis of their ability or inability to work. An employer is not required to provide a minimum level of medical or cash benefits, but is required to treat an employee who is temporarily unable to perform the essential functions of her job because of pregnancy or pregnancy-related medical conditions in the same manner as it treats other temporarily disabled employees. This can be done by providing the pregnant employee with modified tasks, alternative assignments, disability leave, leave without pay, etc. Although not required by law, an employer may provide benefits more favourable to women with pregnancy-related conditions than to employees with other temporary medical conditions. The United States' social security system does not provide coverage of maternity benefit. Finally, in the United States, any employment policy that excludes pregnant women or women of child-bearing age from jobs that may be hazardous to unborn children constitutes unlawful discrimination on the basis of sex. Such a policy can only be defended if the employer can show that being a male or non-fertile female is a bona fide occupational qualification for that particular job. (2) The United States could not adopt the international instrument(s) as worded. The language needs to be revised to provide a greater respect for individual rights and free choice.
USCIB: National legislation significantly addresses employment discrimination, individual choice and protection of privacy rights, but places less emphasis upon the provision of paid benefits and limitation of the circumstances under which a woman can work. These are not peculiarities, but rather a different philosophy in which individuals have a right to choose and to control their working lives.
AFL-CIO: There is currently no federal system in the United States that provides compensation and benefits during periods of maternity leave. Federal legislation prescribing a financing mechanism or source should be enacted.
Venezuela. (1) The Labour Code; the Social Security Code; the Act concerning discrimination against women; and the National Programme for Women. (2) By reporting on measures adopted by Venezuela with regard to Convention No. 103 and the associated Recommendation.
CTV: No.
Viet Nam. (1) Maternity benefits provided through the national social insurance system only cover 10 per cent of employees. There are no comprehensive policies to protect women's employment when their jobs are prohibited due to health and safety considerations. (2) Finding effective methods to encourage women (especially women in rural areas and in small enterprises) to take part in social insurance system. Improving working conditions for all and increasing safe jobs for women.
Zimbabwe. (1) Proving that women are discriminated against, especially in cases where all other matters have been handled procedurally, is difficult. (2) Paternity leave should be provided, thus women and men should be on equal or similar grounds.
ZCTU: (1) Question 27. Nursing facilities may not be used much in Zimbabwe because we do not travel with babies up to the age of 6 months on public transport. (2) Facilities can be provided for older children aged from 1 to 2 years. From 3 to 12 months, transport should be provided if the baby is to be brought to the work premises.
Paragraphs (1) and (2):
Several governments, employers' organizations and workers' organizations identified a number of potential hurdles to the effective implementation of the instruments proposed. Many of these were associated with the need to change national law and policy to make them compatible with the provisions of the international instruments — some might require reform of national institutions such as social security and health care systems. A number of replies referred to limitations linked to the varying levels of development and economic capacity of Members. Other specific problems raised in the replies to this question have already been dealt with in the commentaries to the preceding questions and in the corresponding points in the Proposed Conclusions.
To overcome these problems, several proposals were put forward, such as: revising national legislation, regulations and policy to conform with the new instruments; establishing or revising social security schemes to provide maternity benefits to women leaving certain issues such as those pertaining to parental leave, to be decided pursuant to national law and regulations or through collective bargaining; drafting a flexible instrument, which would permit special circumstances, such as those based upon moral, social and religious grounds, to be accommodated within national systems; distributing provisions of the Convention and Recommendation in a different manner; taking greater account of the economic circumstances of each Member; and providing for periodic reviews and ongoing dialogue among all social partners as well as education.
Qu. 31 |
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[Federal States only] Do you consider that, in the event of the instrument(s) being adopted, the subject-matter would be appropriate for federal action, or wholly or in part for action by the constituent units of the federation? |
Total number of replies: 13. Argentina, Australia, Austria, Belgium, Brazil, Canada, India, Pakistan, Russian Federation, Switzerland, United Arab Emirates, United States, Venezuela.
Argentina. CGT: In the case of Argentina, labour law regarding the private sector is delegated by the provinces to the national authorities; in the public sector, the individual provinces are responsible for passing their own legislation.
Australia. For Australia, the subject-matter is for implementation by both the federal and constituent state and territory governments.
ACTU: A national standard should be implemented at federal and state levels.
Austria. Measures by the Federation and the individual states are required.
Belgium. Federal authorities as long as the texts do not evoke the precise manner in which the medical care of children is provided.
Brazil. According to the Brazilian Constitution, this pertains to the federal authorities.
Canada. Both apply, given that benefits are federal whilst leave is governed under provincial jurisdiction.
India. Action is required to be taken by both the Central and Provincial Governments.
Bharatiya Mazdoor Sangh: The subject-matter would be appropriate for federal action.
National Front of Indian Trade Unions: By federal action.
Pakistan. In the event of ratification of the Convention, the subject-matter would be appropriate for federal as well as provincial action.
Russian Federation. At the federal level, it is necessary to establish general rules regulating maternity leave, minimum benefits, and medical aid available at pre- and postnatal stages.
Switzerland. Maternity insurance legislation is handled at the federal level; social assistance is handled at the cantonal level.
United Arab Emirates. It is for federal action.
United States. Under the Constitution of the United States, ratification of ILO Conventions is a federal matter. However, the states have the right to make laws dealing with the subject-matter contained in the proposed instrument(s), as long as they do not conflict with already established federal laws.
USCIB: Issues of privacy are torts that are subject to state law.
Venezuela. Wholly, because the laws in question are framework, special and national laws.
According to the replies, in most cases, action will be required at both federal and cantonal, provincial, or state levels, as the case may be, to implement the provisions of the Convention and Recommendation. This will depend upon the constitutional structure of each member State, and therefore the division of powers and responsibility will vary accordingly.
Qu. 32 |
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Are there, in your view, any other pertinent problems not covered by the present questionnaire which ought to be taken into consideration when the instrument(s) are being drafted? If so, please specify. |
Total number of replies: 52.
Affirmative: 9. Australia, Benin, Brazil, Chile, Costa Rica, Croatia, Hungary, Philippines, Zimbabwe.
Negative: 22. Argentina, Botswana, Cuba, Egypt, El Salvador, Japan, Kenya, Lithuania, Luxembourg, Malaysia, Netherlands, Pakistan, Peru, Russian Federation, Spain, Sri Lanka, Thailand, Togo, Trinidad and Tobago, Tunisia, Ukraine, United States.
Other: 21. Austria, Belgium, Canada, China, Congo, Denmark, Ecuador, Finland, Germany, Greece, India, Lebanon, Mauritius, Namibia, Romania, San Marino, Slovakia, South Africa, Syrian Arab Republic, Turkey, Venezuela.
Argentina. CGT: No.
Australia. The following are important issues to consider when designing the new instruments:
ii(i)the preamble should explain the major aims of the standards;
i(ii)the questionnaire focused on insurance-based cash benefits, whereas other systems of providing benefits, such as employer-funded maternity leave, should be given recognition;
(iii)the question of adopted children should be clarified. If the aim is to protect the health of pregnant women and new mothers, then a woman who has adopted a child would not be eligible, as she would not face the same health risks and physical conditions of a woman who has given birth. Australia believes adoption would be more appropriately addressed by the Workers with Family Responsibilities Convention, 1981 (No. 156); and
(iv)the issue of prior service as an eligibility requirement is not addressed.
ACTU: Where a pregnancy terminates other than by the birth of a living child, benefits, including leave, should be made available to the mother as required.
Austria. Article 5 of Convention No. 103 (nursing breaks) should be maintained in the text. The Convention should also cover health protection and parental leave. Paragraph 4(1) of Recommendation No. 95 (protection from dismissal) should also be contained in the new Recommendation. The ban on night work and overtime, as well as work on Sundays and public holidays, should be explicitly mentioned in the Recommendation.
BAK: Protective measures in the case of probationary contracts and limited duration contracts; minimum standards for non-standard employment situations, such as work that is low-paid, part-time or involves provision of services.
Belgium. The question of miscarriages might usefully be addressed in the Recommendation.
Benin. Maternity protection in the event of closely spaced pregnancies.
Brazil. The instruments should contain some provision for cases of adoption.
CNC and CNI: No
Canada. Leave for adoptive parents; employer-sponsored supplemental plans sanctioned by the national plans; access to maternity leave and benefits for women in non-standard employment.
CLC: Related family care leave/parental leave; additional special leave for parents with dependents with special needs or disabilities.
Chile. Child-care systems; determine the State's primary or secondary role and that of social security schemes; emphasize the State's responsibility in this field; and explicitly address issues of job flexibility (inter alia, part-time work, homework, telework).
China. There should be no provisions that stipulate (a) who is responsible for paying contributions to maternity insurance for a domestic woman worker; (b) who is responsible for paying contributions for a part-time woman worker employed by two or more families; and (c) whether a part-time male worker should pay contributions.
Congo. The Convention should allow a woman who delivers a stillborn child to benefit from her postnatal leave.
Colombia. CGTD: Fixed-term contracts are prejudicial to women workers, when the employer does not wish to renew the contract. The proposed Convention and Recommendation should establish standards prohibiting dismissal of women workers during a period of time of not less than six months after completion of maternity leave.
Costa Rica. The question of sanctions for employers who violate employment protection measures, and the provision for maternity leave to women workers who adopt a child should be addressed.
Croatia. The revision contains only minor changes, some representing a reduction in rights, which is not in accordance with the ILO Constitution. A new Convention is needed, but it has to be drafted differently.
KNSH, SSSH, HUS, MATICA and KHSJSN: The instruments should include a provision on supervision of the implementation of the Convention through national laws and regulations. The Recommendation should include provisions about the right of mothers to receive information regarding child care and free medical counselling.
Czech Republic. UZS „R. Maternity protection should also be provided for unemployed women and women immigrants.
Dominica. DAWU: No.
DTU: No.
WAWU: The stress and depressive state that women go through before and after delivery.
Ecuador. Psychological factors, including the stress that can result from certain forms of activity for the prospective mother; the risks of women in the police force; the problems encountered by women engaged in chemical and biological processing.
UGTE: The situation of the newborn, i.e. the setting up of compulsory crèches at or near workplaces, to be managed by suitably qualified individuals.
Estonia. Estonian Association of Trade Unions: The Convention should prohibit discrimination in employment.
Ethiopia. CETU: No.
Finland. In order to achieve more equal opportunities for women and men in the world of work, fathers' greater participation in the caretaking responsibilities needs to be facilitated. The updated list of risk factors (Question 25) should be taken into account when improving health and safety in all workplaces where men and/or women of fertile age work. Expert help for risk assessment should be available.
France. CNPF: No.
CFDT: Travel between home and work: solutions might include a reduction in working time; an increase in maternity leave; a transfer, when possible, to a worksite closer to the home; career advancement and access to any professional training after her return to work.
CFTC: The question of child care after the postnatal and parental leaves and of maternity wages.
Germany. Minimum standards regarding prohibition of night work, work on Sundays and overtime.
BDA: No.
DAG: Individual prohibition of employment in particular cases in accordance with a doctor's certificate.
Ghana. NCWD: Modalities should be set for contribution to health insurance in the informal sector or portion of tax paid used to cover health insurance.
Greece. The questionnaire was satisfactory and clear. Comments regarding point 24(c) require special attention.
Hungary. Services providing information on legal protection or various aid options operated and maintained by the civilian sector may be useful. State assistance for services of this kind may be a goal that could be included in the Recommendation. It would be most useful if provisions and entitlements could be used by the woman in accordance with her own individual preferences.
India. The prohibition of night work should be considered for inclusion. The distribution of prenatal and postnatal leave should be made flexible to facilitate nursing the child and the health of the mother. Maternity benefits may also be allowed to all women in the unorganized sector. In order to achieve wider ratification of the Convention, the provisions should be made flexible to enable national governments to provide for maternity protection in a phased manner in different sectors, especially with respect to social security benefits.
Bharatiya Mazdoor Sangh: Facilities should not be extended in case of abortion. The period and mode of paternity leave and termination of service from the date of confinement up to one year should be invalid if the mother was on leave, whether paid or not.
Centre of Indian Trade Unions: Maternity benefits should be paid in cash to women by the government administration in the unorganized sector, home-based workers and domestic workers.
National Front of Indian Trade Unions: Maternity protection should be extended for two children only. More emphasis should be given to the unorganized sector.
Iraq. General Federation of Trade Unions: The proposed instrument will only provide protection for those working in the formal sector, while the larger proportion of women, those working in the informal sector, will remain unprotected. This instrument will not alter the degree of protection already achieved.
Jamaica. JEF: The need to limit births and to practise family planning.
Japan. JTUC-RENGO: Abortion and miscarriage should be taken into consideration.
Jordan. General Federation of Jordanian Trade Unions: No.
Lebanon. The Recommendation should prohibit women from working overtime during pregnancy and for a period of time to be determined by national authorities after the expiry of maternity leave. It should provide for postnatal parental leave for periods to be determined by national authorities. It should prohibit the dismissal of a woman from her work during medically certified illness arising from pregnancy.
Lithuania. Confederation of Lithuanian Entrepreneurs/Employers: Protection of mother and child in the family.
Mauritius. Emphasize maternal and child health. Employers should be encouraged to promote this.
Namibia. Include stillbirths and miscarriages. Exclude abortions from any maternity benefits.
NEF: Complications of childbirth that may result in loss of income following extended maternity leave, especially in the case of single mothers, where there is no other source of income. Compel the State through other means to take care of the exceptional needs of single mothers, e.g. infant feeding programmes.
Netherlands. FNV: A revised Convention and a revised Recommendation should progressively extend the provisions of Convention Nos. 3 and 103 and of Recommendation No. 95. Given the fact that the questionnaire addresses several provisions of Convention No. 103 only in the part dealing with the Recommendation, the FNV fears regression. See Questions 9(1), 15(1), 19, 20, 25 and 26. For other pertinent problems which ought to be taken into consideration when the instrument(s) are being drafted, see Questions 8, 12(1), 16(1), 19, 22(1)-(2) and 28.
Norway. Confederation of Trade Unions in Norway (LO): Relevant parts of the Convention should be given effect in connection with adoption.
Pakistan. The present questionnaire covers almost all existing problems relating to maternity protection.
Peru. CUT: The non-discrimination provisions should include not only age, race, nationality, religion and marital status, but also any social or cultural condition that in a specific society becomes an impediment to achieving material equality. Limited exceptions to the scope should be based on the type of work performed, not on the category of enterprise. Adequate protection should be assured for workers with family responsibilities, either in this or in another international document.
Philippines. Miscarriages and legal abortion need to be taken into consideration.
Portugal. CIP: There are no other problems.
UGT: The change in the location of some provisions implies regression with regard to what has already been established. Only a transfer from the Recommendation to the Convention would be accepted, not the other way round. Issues are presented which have already been settled. Revision implies that these issues may be altered. Lastly, recognition of paternity leave and rules restricting or prohibiting work hazardous to the health of mother and child should be included in the text of the Convention.
Romania. Free preventive medical examinations, carried out annually at the workplace for women of child-bearing age; ensuring access to professional training missed while on maternity leave; prohibition for pregnant women or those caring for a young child to be required to travel to a place of work outside their place of residence or to be transferred.
CSDR: No.
San Marino. Possibility for one of the parents to transfer from full-time to part-time employment up to the child's third birthday. Leave and benefits in respect of childbirth must be extended to the parents of adopted or foster children.
Slovakia. The protection of pregnant women and mothers from being sent on business trips.
South Africa. Provision for foster mothers of newborn babies as well as adoptive mothers.
Spain. CIG: Yes, adoption of children as well as eliminating gender-based differences in social security contributions paid by employers.
Syrian Arab Republic. Mothers should obtain leave when their child is sick. The employment of pregnant women in night shifts.
Trinidad and Tobago. ECA: Culture and customs of individual countries should be allowed to influence national practice.
Turkey. Total nursing period on daily nursing basis has not been specified.
TÜRK-IÔ: No.
United States. USCIB: None.
Venezuela. Consideration should be given to certain conceptual and legal distinctions that exist in each country.
CTV: It is vital that employers provide guarantees of the mother's employment during pregnancy and after the birth, and to ensure compliance with legislation and collective agreements in this regard.
Zimbabwe. Paternity leave should be given as much coverage as possible. Both sexes should be given similar rights on maternity/paternity.
A majority of governments replying to this question felt that all pertinent issues had been addressed. The importance of drafting a flexible instrument had been mentioned in all the replies to the questionnaire — and was reiterated in a few replies to this particular question. Flexibility was considered necessary to achieve agreement on the minimum standards of the Convention, given the great differences in national law and practice and the cultural differences among member States. Some comments identified a number of provisions that should be carried over from Convention No. 103 and Recommendation No. 95, such as those pertaining to nursing breaks, night work and overtime. Additional issues mentioned as pertinent within the new instruments included: provisions concerning parental leave; protection for women in the informal sector; provisions for women in non-standard employment and on fixed-term contracts; the possibility for transfer from full-time to part-time employment; special leave for parents with dependants with special needs or disabilities; stillbirths, miscarriage and abortion; leave and benefits for adoptive parents; provision of information on child care and free medical counselling; the exceptional needs of single mothers; sanctions against employers that may violate provisions prohibiting termination of employment of pregnant women; and reconciling potential difficulties for nursing mothers who need to travel back and forth from work to nurse their child.
The following Proposed Conclusions have been prepared on the basis of the replies summarized and commented upon in this report. They have been drafted in the usual form and are intended to serve as a basis for discussion by the International Labour Conference of the fifth item on the agenda of the 87th Session (1999).
A. Form of the instruments
1. The International Labour Conference should adopt international standards revising the Maternity Protection Convention (Revised), 1952.
2. These standards should take the form of a Convention supplemented by a Recommendation.
B. Proposed Conclusions with a view to a Convention and a Recommendation
Preamble
3. The Preamble should note the need to revise the Maternity Protection Convention (Revised), 1952 and the Maternity Protection Recommendation, 1952, to take account of significant economic and social developments in member States as well as the improvements of the protection of maternity in national law and practice.
4. The Preamble should also recall that many international labour Conventions and Recommendations include provisions concerning maternity protection.
C. Proposed Conclusions with a view to a Convention
Content of the Proposed Convention
Definition
5. For the purposes of the Convention, the term "woman" should apply to any female person, whether married or unmarried, and the term "child" should apply to any child whether born of marriage or not.
Scope
6. (1) The Convention should apply to all employed women.
(2) However, a Member might, after consulting the representative organizations of employers and workers concerned, exclude wholly or partly from the scope of the Convention limited categories of workers or of enterprises when its application to them would raise special problems of a substantial nature.
(3) A Member which avails itself of the possibilities afforded in the preceding paragraph should, in its first report on the application of the Convention under article 22 of the Constitution of the International Labour Organization, list the categories of workers or of enterprises thus excluded and the reasons for their exclusion.- In its subsequent reports, the Member should describe the measures taken with a- view to progressively extending the provisions of the Convention to these categories.
Leave
7. (1) A woman to whom the Convention applies should, on production of a medical certificate stating the presumed date of her confinement, be entitled to a period of maternity leave of not less than 12 weeks.
(2) The period of leave referred to above should be specified by a Member in a declaration accompanying its ratification.
(3) A Member might subsequently deposit with the Director-General of the International Labour Office a further declaration extending the period of maternity leave.
8. (1) The leave referred to in Point 7(1) above should include a period of compulsory leave, the duration and distribution of which should be determined in each country after consulting the representative organizations of employers and workers, with due regard to the protection of the health of mother and child.
(2) On the basis of a medical certificate, additional leave should be provided before or after confinement in case of illness, complications or risk of complications arising out of pregnancy or confinement. The maximum duration of such leave might be fixed by the competent authority.
Benefits
9. (1) Cash and medical benefits should be provided, in accordance with national laws and regulations or other means referred to in Point 14 below, to women who are absent from work on maternity leave or additional leave (as referred to in Point 8(2) above).
(2) Cash benefits should be at a level which ensures that the woman can maintain herself and her child in proper conditions of health and with a suitable standard of living.
(3) Cash benefits should be provided either: (a) at a rate which should not be less than two-thirds of the woman's previous earnings or of such of those earnings as are taken into account for the purpose of computing benefits; or (b) by means of a flat rate benefit of an appropriate amount.
(4) Where a woman does not meet the conditions to qualify for cash benefits under national laws and regulations or other means referred to in Point 14 below, she should be entitled to adequate benefits out of social assistance funds, subject to the means test required for such assistance.
(5) Medical benefits should include prenatal, confinement and postnatal care, as well as hospitalization care, when necessary.
10. (1) A Member whose economy and social security system are insufficiently developed should be deemed to be in compliance with Point 9(3) above if cash benefits are provided at a rate no lower than the benefits payable for sickness or temporary disability in accordance with national laws and regulations or other means referred to in Point 14 below.
(2) A Member which avails itself of the possibilities afforded in this paragraph should, in its first report on the application of the Convention under article 22 of the Constitution of the International Labour Organization, explain the reasons therefor and indicate the rate at which cash benefits are provided. In its subsequent reports, the Member should describe the measures taken with a view to progressively raising the rate of benefits.
Employment protection and non-discrimination
11. It should be unlawful for an employer to terminate the employment of a woman who is pregnant, absent on maternity leave or additional leave (as referred to in Point 8(2) above), and during a period following her return to work, to be prescribed by national laws and regulations, except on grounds unrelated to the pregnancy or childbirth and its consequences or nursing.
12. A Member should adopt appropriate measures to ensure that maternity does not constitute a source of discrimination in employment.
Periodic review
13. A Member should examine periodically, in consultation with the most representative organizations of employers and workers, the appropriateness of extending the period of maternity leave or of increasing the amount or the rate of benefits referred to in Points 7(1) and 9(3) above.
Implementation
14. The Convention should be implemented by means of laws or regulations, except in so far as effect is given to it by other means such as collective agreements, arbitration awards or court decisions, or in any other manner as may be consistent with national practice.
D. Proposed Conclusions with a view to a Recommendation
Content of the Proposed Recommendation
Maternity leave
15. (1) Members should endeavour to extend the period of maternity leave to at least 14 weeks.
(2) The prenatal portion of leave should be extended by any period elapsing between the presumed date of confinement and the actual date of confinement, without any reduction in any compulsory portion of postnatal leave.
(3) Provision should be made for an extension of the maternity leave in the event of multiple births.
(4) Measures should be taken to ensure that, to the extent possible, the woman should be entitled to choose freely the time at which she takes any non-compulsory portion of her maternity leave before or after childbirth.
(5) In the event that her child is hospitalized after the expiry of any compulsory post-natal leave, a woman should be entitled to postpone any remaining period of maternity leave until the child leaves hospital.
Maternity benefits
16. Where practicable, the cash benefits to which a woman is entitled during maternity leave and additional leave (as referred to in Point 8(2) above) should be raised to the full amount of the woman's previous earnings or of such of those earnings as are taken into account for the purpose of computing benefits.
17. To the extent possible, the medical benefits should include care given in a doctor's office, at home or in a hospital or other medical establishment by a general practitioner or a specialist; care given by qualified midwives or other maternity services at home, in hospital or other medical establishments; maintenance in hospitals or other medical establishments; any necessary pharmaceutical and medical supplies, examinations and tests prescribed by a medical practitioner or other qualified person; and dental and surgical care.
Financing of benefits
18. The cash and medical benefits should be provided through compulsory social insurance, public funds or in a manner determined by national law and practice.
19. Any contribution due under compulsory social insurance providing maternity benefits and any tax based upon payrolls which is raised for the purpose of providing such benefits, whether paid both by the employer and the employees or by the employer, should be paid in respect of the total number of men and women employed, without distinction of sex.
Employment protection and non-discrimination
20. A woman should be entitled to return to her former position or a similar one at the end of her maternity leave, the period of which should be considered as a period of service for the determination of her rights.
21. To ensure that maternity does not constitute a source of discrimination in employment, measures adopted should include a prohibition from requiring a test for pregnancy or a certificate of such a test when a woman is applying for employment, except for work which under national laws or regulations is prohibited or restricted for pregnant or nursing women or which is prejudicial to the health of the woman and child.
Health protection
22. (1) The employment of a woman on work defined by the competent authority as prejudicial to her health or that of her child should be prohibited during pregnancy and up to three months after childbirth and longer if the woman is nursing her child.
(2) Where the woman's work is the subject of a prohibition of employment during pregnancy and nursing or involves a risk to her health or that of the child, measures should be taken to provide, on the basis of a medical certificate as appropriate, an alternative to such work in the form of: (a) an adaptation of conditions of work; (b) a transfer to another post, when such an adaptation is not feasible; or (c) leave, in accordance with national laws, regulations or practice, when such a transfer is not feasible.
(3) Measures referred to in Point 22(2) above should be taken in respect of certain types of work such as: arduous work involving the manual lifting, carrying, pushing or pulling of loads; work involving exposure to biological, chemical and physical agents which represent a reproductive health hazard; work requiring special equilibrium; work involving physical strain due to prolonged periods of sitting or standing, or to extreme temperatures, or vibration.
Provisions for nursing mothers
23. (1) A woman should be entitled to daily break(s) to nurse her child, which should be counted as working time and remunerated accordingly.
(2) The frequency and length of nursing breaks, pursuant to national law and practice, should be adapted to particular needs on the presentation of a medical certificate.
(3) Where practicable, it should be possible to combine the time allotted for nursing breaks to allow a reduction of hours of work at the beginning or at the end of the working day.
24. Provision should be made for the establishment of facilities for nursing under adequate hygienic conditions.
Related types of leave
25. (1) An employed woman or the employed father of the child should be entitled to parental leave during a period following the expiry of maternity leave.
(2) The period during which parental leave might be granted, the length of the leave and other modalities, including the payment of parental benefits, the use and distribution of parental leave between the employed parents, should be determined by national laws or regulations or in any manner consistent with national practice.
26. In case of sickness, hospitalization or death of the mother before the expiry of postnatal leave, the employed father of the child should be entitled to take leave of a duration equal to the unexpired portion of the post-natal maternity leave.
10. Note also Article 7(1) and (2) of the Night Work Convention, 1990 (No. 171). The proposed provision recalls Article 5(1)-(3) of EU Directive 92/85/EEC.
Updated by HK. Approved by RH. Last update: 26 January 2000.