88th Session, 30 May - 15 June 2000 |
Report IV (2B) |
Maternity protection at work |
Revision of the Maternity Protection Convention (Revised), 1952 (No. 103), and Recommendation, 1952 (No. 95) |
Fourth item on the agenda |
International Labour Office Geneva |
ISBN 92-2-011512-3 |
CONTENTS
The first discussion of the question of the revision of the Maternity Protection Convention (Revised), 1952 (No. 103), and Recommendation, 1952 (No. 95), took place at the 87th Session (1999) of the International Labour Conference. Following that discussion, and in accordance with article 39 of the Standing Orders of the Conference, the International Labour Office prepared and communicated to the governments of member States a report(1) containing a proposed Convention and a proposed Recommendation concerning the revision of the Maternity Protection Convention (Revised), 1952 (No. 103), and Recommendation, 1952 (No. 95), based on the conclusions adopted by the Conference at its 87th Session.
Governments were invited to send any amendments or comments they might wish to make so as to reach the Office by 30 November 1999 at the latest, or to inform it, by the same date, whether they considered that the proposed texts constituted a satisfactory basis for discussion by the Conference at its 88th Session (2000).
At the time of drawing up this report, the Office had received replies from the governments of the following 84 member States:(2) Argentina, Australia, Austria, Azerbaijan, Bahrain, Barbados, Belarus, Belgium, Benin, Botswana, Brazil, Bulgaria, Cameroon, Canada, Chile, China, Costa Rica, Croatia, Cuba, Cyprus, Czech Republic, Denmark, Ecuador, Egypt, El Salvador, Eritrea, Estonia, Fiji, Finland, France, Germany, Greece, Grenada, Guatemala, Hungary, Iceland, India, Indonesia, Iraq, Italy, Japan, Jordan, Kazakhstan, Republic of Korea, Kuwait, Latvia, Lebanon, Lithuania, Malaysia, Malta, Mauritius, Morocco, Nepal, Netherlands, Norway, Pakistan, Philippines, Poland, Portugal, Qatar, Romania, Russian Federation, Saudi Arabia, Singapore, Slovakia, Slovenia, South Africa, Spain, Sri Lanka, Suriname, Sweden, Switzerland, Syrian Arab Republic, United Republic of Tanzania, Thailand, Togo, Tunisia, Turkey, United Arab Emirates, United Kingdom, United States, Venezuela, Zambia, Zimbabwe.
In accordance with article 39, paragraph 6, of the Standing Orders of the Conference, governments were requested to consult the most representative organizations of employers and workers before finalizing their replies and to indicate which organizations were consulted.
The governments of the following 48 member States stated that the most representative organizations of employers and workers had been consulted: Argentina, Australia, Austria, Belarus, Benin, Botswana, Brazil, Bulgaria, Canada, China, Costa Rica, Croatia, Cuba, Cyprus, Czech Republic, Denmark, Ecuador, Eritrea, Finland, France, Ghana, Greece, Guatemala, Hungary, Iceland, India, Italy, Japan, Republic of Korea, Lebanon, Lithuania, Malaysia, Malta, Mauritius, Morocco, Netherlands, Pakistan, Romania, Singapore, Slovakia, Slovenia, Sri Lanka, Sweden, Syrian Arab Republic, United Republic of Tanzania, United Arab Emirates, United States, Zimbabwe.
In the case of the following 45 member States the replies of employers’ and workers’ organizations were incorporated into those of the government, were appended or were communicated directly to the Office: Argentina, Austria, Barbados, Benin, Brazil, Canada, Chile, Cyprus, Czech Republic, Denmark, Ecuador, Egypt, Estonia, Finland, France, Germany, Greece, Guatemala, India, Italy, Japan, Jordan, Republic of Korea, Lithuania, Malaysia, Mauritius, Morocco, Namibia, Netherlands, New Zealand, Norway, Pakistan, Poland, Portugal, South Africa, Spain, Sweden, Switzerland, Thailand, Togo, Turkey, United Kingdom, United States, Uruguay, Venezuela.
To ensure that the English and French texts of the proposed Convention and proposed Recommendation concerning the revision of the Maternity Protection Convention (Revised), 1952 (No. 103), and Recommendation, 1952 (No. 95), are in the hands of the governments within the time-limit laid down in article 39, paragraph 7, of the Standing Orders of the Conference, Report IV(2) is published in two volumes.(3) The present bilingual volume (Report IV(2B)) contains the English and French versions of the proposed texts, amended in the light of the observations made by governments and by employers’ and workers’ organizations and for the reasons set out in the Office commentaries. In addition, some slight changes were made, where appropriate, in the wording of the texts, mainly to ensure full convergence between the two versions of the proposed instruments. If the Conference so decides, these texts will serve as a basis for the second discussion, at the 88th Session (2000), of the question of the revision of the Maternity Protection Convention (Revised), 1952 (No. 103), and Recommendation, 1952 (No. 95).
1. ILO: Maternity protection at work: Revision of the Maternity Protection Convention (Revised), 1952 (No. 103),
and Recommendation, 1952 (No. 95), Report IV(1), International Labour Conference,
88th Session, Geneva, 2000.
2. Replies that arrived too late to be included in the report may be consulted by delegates at the Conference.
3. Report IV(2A) will be in the hands of governments approximately one month after the present volume and will contain summaries of the replies received and the Office commentaries.
The following are the English versions of (A) the proposed Convention concerning the revision of the Maternity Protection Convention (Revised), 1952, and (B) the proposed Recommendation concerning the revision of the Maternity Protection Recommendation, 1952, which are submitted as a basis for discussion of the fourth item on the agenda of the 88th Session of the Conference.
A. Proposed Convention concerning the revision of the
Maternity Protection Convention (Revised), 1952
The General Conference of the International Labour Organization,
Having been convened at Geneva by the Governing Body of the International Labour Office, and having met in its 88th Session on 30 May 2000, and
Noting the need to revise the Maternity Protection Convention (Revised), 1952, and the Maternity Protection Recommendation, 1952, in order to recognize the diversity in economic and social development of Members and the development of the protection of maternity in national law and practice, and
Recalling that many international labour Conventions and Recommendations include provisions concerning maternity protection, and
Having decided upon the adoption of certain proposals with regard to the revision of the Maternity Protection Convention (Revised), 1952, and Recommendation, 1952, which is the fourth item on the agenda of the session, and
Having determined that these proposals shall take the form of an international Convention;
adopts this day of June of the year two thousand the following Convention, which may be cited as the Maternity Protection Convention, 2000.
Scope
Article 1
For the purposes of this Convention, the term "woman" applies to any female person without discrimination whatsoever and the term "child" applies to any child without discrimination whatsoever.
Article 2
1. This Convention applies to all employed women.
2. However, each Member which ratifies this Convention may, 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. Each Member which avails itself of the possibility afforded in the preceding paragraph shall, 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 shall describe the measures taken with a view to progressively extending the provisions of the Convention to these categories.
Maternity leave
Article 3
1. On production of a medical certificate or other appropriate certification, as determined by national law and practice, stating the presumed date of childbirth, a woman to whom this Convention applies shall be entitled to a period of maternity leave of not less than 12 weeks.
2. The length of the period of leave referred to above shall be specified by each Member in a declaration accompanying its ratification of this Convention.
3. Each Member may subsequently deposit with the Director-General of the International Labour Office a further declaration extending the period of maternity leave.
4. Maternity leave shall include a period of compulsory leave, the duration and distribution of which shall be determined by each Member after consulting the representative organizations of employers and workers and with due regard to the protection of the health of the mother and the health of the child.
5. The prenatal portion of maternity leave shall be extended by any period elapsing between the presumed date of childbirth and the actual date of childbirth, without reduction in any compulsory portion of post-natal leave.
Leave in case of illness or complications
Article 4
On production of a medical certificate, leave shall be provided before or after the maternity leave period in the case of illness, complications or risk of complications arising out of pregnancy or childbirth. The nature and the maximum duration of such leave may be specified by the competent authority.
Benefits
Article 5
1. Cash and medical benefits shall be provided, in accordance with national laws and regulations or other means referred to in Article 11, to women who are absent from work on leave referred to in Article 3 or 4.
2. Cash benefits shall 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. Where, under national law or practice, cash benefits paid with respect to leave referred to in Article 3 are based on previous earnings, the amount of such benefits shall 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.
4. Where, under national law or practice, other methods are used to determine the cash benefits paid with respect to leave referred to in Article 3, the amount of such benefits shall be comparable to the amount resulting on average from the application of the preceding paragraph.
5. Each Member shall ensure that the conditions to qualify for cash benefits can be satisfied by a large majority of the
women to whom this Convention applies.
6. Where a woman does not meet the conditions to qualify for cash benefits under national laws and regulations or other means referred to in Article 11, she shall be entitled to adequate benefits out of social assistance funds, subject to the means test required for such assistance.
7. Medical benefits shall include prenatal, childbirth and post-natal care, as well as hospitalization care when necessary.
Article 6
1. A Member whose economy and social security system are insufficiently developed shall be deemed to be in compliance with Article 5, paragraphs 3 and 4, if cash benefits are provided at a rate no lower than a rate payable for sickness or temporary disability in accordance with national laws and regulations or other means referred to in Article 11.
2. A Member which avails itself of the possibility afforded in the preceding paragraph shall, in its first report on the application of this 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 shall describe the measures taken with a view to progressively raising the rate of benefits.
Employment protection and non-discrimination
Article 7
It shall be unlawful for an employer to terminate the employment of a woman during her pregnancy or absence on leave referred to in Article 3 or 4 or during a period following her return to work to be prescribed by national laws or regulations, except on grounds unrelated to the pregnancy or birth of the child and its consequences or nursing. The burden of proving that the reasons for dismissal are unrelated to pregnancy or childbirth and its consequences or nursing shall rest on the employer.
Article 8
1. Each Member shall adopt appropriate measures to ensure that maternity does not constitute a source of discrimination in employment, including — notwithstanding Article 2, paragraph 1 — access to employment.
2. Measures referred to in the preceding paragraph shall include a prohibition from requiring a test for pregnancy or a certificate of such a test when a woman is applying for employment, except where the work is prohibited or restricted for pregnant or nursing women under national laws or regulations or where there is a recognized or significant risk to the health of the woman and child.
Breastfeeding mothers
Article 9
1. A woman shall be entitled to one or more daily breaks to nurse her child.
2. The period of entitlement to such breaks and their frequency and length may be determined in accordance with national law and practice. The breaks shall be counted as working time and remunerated in consequence.
Periodic review
Article 10
Each Member shall examine periodically, in consultation with the most representative organizations of employers and workers, the appropriateness of extending the period of leave referred to in Article 3 or of increasing the amount or the rate of the cash benefits referred to in Article 5.
Implementation
Article 11
This Convention shall 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.
B. Proposed Recommendation concerning the revision of the
Maternity Protection Recommendation, 1952
The General Conference of the International Labour Organization,
Having been convened at Geneva by the Governing Body of the International Labour Office, and having met in its 88th Session on 30 May 2000, and
Having decided upon the adoption of certain proposals with regard to maternity protection, which is the fourth item on the agenda of the session, and
Having determined that these proposals shall take the form of a Recommendation supplementing the Maternity Protection Convention, 2000 (hereinafter referred to as "the Convention"),
adopts this day of June of the year two thousand the following Recommendation, which may be cited as the Maternity Protection Recommendation, 2000.
Maternity leave
1. (1) Members should endeavour to extend the period of maternity leave referred to in Article 3 of the Convention to at least 16 weeks.
(2) Provision should be made for an extension of the maternity leave in the event of multiple births.
(3) To the extent possible, measures should be taken to ensure that the woman is entitled to choose freely the time at which she takes any non-compulsory portion of her maternity leave before or after childbirth.
Benefits
2. Where practicable, and after consultation with the representative organizations of employers and workers, the cash benefits to which a woman is entitled during leave referred to in Articles 3 and 4 of the Convention 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.
3. To the extent possible, the medical benefits provided for in Article 5, paragraph 7, of the Convention should include:
(a) care given in a doctor’s office, at home or in a hospital or other medical establishment by a general practitioner or a specialist;
(b) care given by a qualified midwife or other maternity service at home or in a hospital or other medical establishment;
(c) maintenance in a hospital or other medical establishment;
(d) any necessary pharmaceutical and medical supplies, examinations and tests prescribed by a medical practitioner or other qualified person; and
(e) dental and surgical care.
Financing of benefits
4. The cash and medical benefits should be provided through compulsory social insurance, public funds or in a manner determined by national law and practice.
5. 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 by both 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
6. A woman should be entitled to return to her former position or an equivalent position paid at the same rate at the end of her leave referred to in Article 3 of the Convention. The period of such leave should be considered as a period of service for the determination of her rights.
Health protection
7. (1) A woman who is pregnant or nursing should not be obliged to perform work where:
(a) it has been determined by the competent authority to be prejudicial to the health of mother and child; or
(b) there is a recognized risk to the health of mother and child; or
(c) an assessment has established a significant risk to her own health or that of the child.
(2) In any of the situations referred to in subparagraph (1), 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 her 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 subparagraph (2) should in particular be taken in respect of:
(a) arduous work involving the manual lifting, carrying, pushing or pulling of loads;
(b) work involving exposure to biological, chemical or physical agents which represent a reproductive health hazard;
(c) work requiring special equilibrium;
(d) work involving physical strain due to prolonged periods of sitting or standing, to extreme temperatures, or to vibration.
(4) The woman should retain her right to return to her job or an equivalent job as soon as it is safe for her to do so.
Breastfeeding mothers
8. On production of a medical certificate or other appropriate certification as determined by national law and practice, the frequency and length of nursing breaks should be adapted to particular needs.
9. Where practicable and with the agreement of the employer and the woman concerned, it should be possible to combine the time allotted for daily nursing breaks to allow a reduction of hours of work at the beginning or at the end of the working day.
10. Where practicable, provision should be made for the establishment of facilities for nursing under adequate hygienic conditions.
Related types of leave
11. (1) In the case of the death of the mother before the expiry of post-natal leave, the employed father of the child should be entitled to take leave of a duration equal to the unexpired portion of the post-natal maternity leave.
(2) In the case of sickness or hospitalization of the mother after childbirth and where the mother cannot look after the child, the employed father of the child should be entitled to leave in accordance with national law and practice.
Updated by HK. Approved by RH. Last update: 14 March 2000.