Introduction. Maternity protection is a fundamental labour right enshrined in key universal human rights treaties. The 1948 Universal Declaration of.
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Copyright © International Labour Organization 2014 First published 2014 Publications of the International Labour O˜ce enjoy copyright under Protocol 2 of the Universal Copy -right Convention. Nevertheless, short excerpts from them may be reproduced without authorization, on condition that the source is indicated. For rights of reproduction or translation, application should be made to ILO Publications (Rights and Permissions), International Labour O˜ce, CH-1211 Geneva 22, Switzerland, or by email: pubdroit@ilo.org. ˚e International Labour O˜ce welcomes such applications. Libraries, institutions and other users registered with reproduction rights organizations may make copies in accordance with the licences issued to them for this purpose. Visit www.ifrro.org to ˛nd the reproduc -tion rights organization in your country. ˚e designations employed in ILO publications, which are in conformity with United Nations practice, and the presentation of material therein do not imply the expression of any opinion whatsoever on the part of the International Labour O˜ce concerning the legal status of any country, area or territory or of its au -thorities, or concerning the delimitation of its frontiers. ˚e responsibility for opinions expressed in signed articles, studies and other contributions rests solely with their authors, and publication does not constitute an endorsement by the International Labour O˜ce of the opinions expressed in them. Reference to names of ˛rms and commercial products and processes does not imply their endorsement by the International Labour O˜ce, and any failure to mention a particular ˛rm, commercial product or process is not a sign of disapproval. ILO publications and electronic products can be obtained through major booksellers or ILO local o˜ces in many countries, or direct from ILO Publications, International Labour O˜ce, CH-1211 Geneva 22, Switzerland. Catalogues or lists of new publications are available free of charge from the above address, or by email: pubvente@ilo.org Visit our website: www.ilo.org/publns Addati, Laura; Cassirer, Naomi; Gilchrist, Katherine Maternity and paternity at work : law and practice across the world International Labour O˜ce. Œ Geneva: ILO, 2014 ISBN 978-92-2-128630-1 (print) ISBN 978-92-2-128631-8 (web pdf)International Labour O˜ce maternity protection / working mother / parent / family responsibilities / child care / role of ILO / ILO Convention / ILO Recommendation / labour legislation / comment / developed countries / developing countries 13.01.3 ILO Cataloguing in Publication Data This publication was produced by the Document and Publications Production, Printing and Distribution Branch (PRODOC) of the ILO. Graphic and typographic design, manuscript preparation, copy editing, layout and composition, proofreading, printing, electronic publishing and distribution. PRODOC endeavours to use paper sourced from forests managed in an environmentally sustainable and socially responsible manner. Code: DTP-WEI-SEP
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Contents 1 Introduction 1Executive summary xiii Acknowledgements xi Preface ix 7Maternity leave 2.1˜Duration of maternity leave 8National conformity with ILO standards on duration of maternity leave 9Trends between 1994 and 2013 in the duration of maternity leave 11When can maternity leave be taken? 12Extension or reduction of the maternity leave period 142.2˜Maternity cash bene˚ts 16Amount and duration 16Methods of calculating cash bene˜ts 17National conformity with Convention No. 183 on duration of maternity leave and cash bene˜ts 182.3˜Financing of maternity cash bene˚ts 20Financing mechanisms around the world 20National practice 25Trends between 1994 and 2013 in level and source of funding 27National conformity with Convention No. 183 on duration, amount and source of funding 302.4˜Scope and eligibility requirements 34Estimates of coverage in law and in practice of paid maternity leave 35Workers excluded from paid maternity leave provisions 37Eligibility requirements for maternity leave 42Eligibility requirements for maternity cash bene˜ts 43Social assistance cash bene˜ts to women who do not qualify for social insurance bene˜ts 44
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iv Maternity and paternity at work Law and practice across the world 89Health protection at the workplace 5.1˜Arrangement of working time 90Night work 90Overtime 92Time o˚ for medical examinations 925.2˜Dangerous or unhealthy work 94Workplace risk assessment 96Protective measures related to maternity 9773Employment protection and non-discrimination 4.1˜Employment protection during maternity 76Protection against dismissal in national laws 76Length of protection against dismissal in national laws 77Permissible grounds for dismissal 78Burden of proof 78Compensation and other remedies in case of dismissal 80Guaranteed right to return to work 80Maintaining employment bene˜ts 824.2˜Non-discrimination in employment in relation to maternity 82Legal prohibition against discrimination in relation to maternity 84Prohibitions against pregnancy tests 85Monitoring and implementation 8551Paternity, parental and adoption leave 3.1˜Paternity leave 52National provisions and duration 52Eligibility for paternity leave 56Cash bene˜ts 57Trends from 1994 to 2013 in paternity leave provision 593.2˜Parental leave 60National provisions and duration 64Eligibility for parental leave 64Cash bene˜ts 65Take-up rates 65Flexible leave arrangements and other innovative policies 673.3˜Adoption leave 69
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Law and practice across the world Maternity and paternity at work vAppendices I. Methodological notes and summary of information available in the ILO Working Conditions Laws Database, by region 130 II. Key national statutory provisions on maternity leave, by region, 2013 133 III. Estimates of coverage in law and coverage in practice of paid maternity leave, by region, 2010 144 IV. Key national statutory provisions on paternity and parental leave, by region, 1994 and 2013 150 V. Key national statutory provisions on employment protection and non-discrimination, by region, 2013 167 VI. Key national statutory provisions on health protection at the workplace, by region, 2013 175 VII. Key national statutory provisions on breastfeeding arrangements at work, by region, 1994 and 2013 182 Bibliography 121 Breastfeeding arrangements at work and childcare 6.1˜Nursing breaks 102 Provision and remuneration 102 Trends in nursing breaks provision from 1994 to 2013 104 Number and duration of nursing breaks 104 Duration of the entitlement to nursing breaks 105 Scope 106 Daily reduction of working hours 107 6.2˜Nursing and childcare facilities 108 101 7 Conclusions 7.1 What works for maternity and paternity at work 116 115 129
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Law and practice across the world Maternity and paternity at work vii Boxes 2.1 Social insurance cash bene˜ts for maternity in Namibia 212.2 Individual employer liability for maternity cash bene˜ts in Malaysia 222.3 Shifting from employer liability to maternity insurance: Examples of ILO technical assistance 232.4 Examples of non-contributory maternity cash bene˜ts 252.5 Paid maternity leave during the economic crisis 282.6 The cost of maternity bene˜ts: Is maternity protection a˚ordable? 332.7 Extending maternity cash bene˜ts to the self-employed 412.8 Social cash transfers and employment guarantee schemes (EGS) delivering maternity protection to vulnerable workers 423.1 Examples of collective bargaining agreements providing paternity leave 583.2 Parental leave: Shared or individual rights? 623.3 The e˚ects of the economic crisis on paternity and parental leave and bene˜ts 664.1 Regional instruments addressing discrimination in employment in relation to maternity 846.1 Mauritius, the Philippines and India: Expanding the scope of breastfeeding coverage 107 6.2 Promoting breastfeeding and the establishment of nursing facilities 110 6.3 Supporting the care needs of the most vulnerable through childcare 112 Tables 2.1 Compliance with Convention No. 183 on duration of maternity leave, level of payment and source of funding, by provision and region (167 countries) 323.1 Examples of leave provisions in national legislation which can be used by fathers at the time of childbirth 54
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T he year 2019 will mark both the ILO™s 100th anniversary and the first centenary of inter -national labour standards on maternity protec -tion. In fact, protecting maternity at work was one of the primary concerns of the ILO. It was during the ˛rst International Labour Conference in 1919 that the ˛rst Convention on maternity protection (Convention No.˝3) was adopted. ˚is Convention was followed by the adoption of other two Maternity Protection Con -ventions: No.˝103 in 1952 and No.˝183 in 2000. ˚ese standards progressively expanded the scope and entitle -ments related to maternity protection at work in line with the evolving status and recognition of women™s rights in the world of work. Over the years, the core concerns of the ILO have been to ensure that work per -formed by women, in all its forms and situations, does not pose risks to the health of the woman and her child and to ensure that women™s reproductive role does not compromise their economic and employment security and subject them to undue discrimination. During the ILO™s history, international labour standards on maternity protection, in line with the Equal Remuner -ation Convention, 1951 (No.˝100) and the Discrimin -ation (Employment and Occupation) Convention, 1958 (No.˝111), have indeed rea˜rmed the principle of equality of opportunity and treatment for men and women, which is at the heart of social justice, the consti -tutional mandate of the ILO. In addition, the adoption of the ILO Workers with Family Responsibilities Con -vention, 1981 (No.˝156) marked the recognition that fia change in the traditional role of men as well as the role of women in society and in the family is needed to achieve full equality between men and womenfl, as stated in the United Nations Convention on the Elimination of All Forms of Discrimination against Women, 1979. Almost a century later, the importance of quality work to the lives of most adult members of society, especially in times of deep economic turbulence and social change, still makes the intersection of work with maternity, paternity and care responsibilities a particu -larly critical focal point for e˙orts to improve health, equality and job quality. These issues are therefore crucial for the Post-2015 Development Agenda and make maternity protection and workŒfamily measures key to the achievement of global development goals. First, by reducing child and maternal mortality and morbidity, maternity protection promotes the health and well-being of mothers and their babies. Second, by safeguarding women™s employment and income se -curity during pregnancy and aˆer childbirth and pro -moting the equal sharing of unpaid care work between women and men, maternity protection and measures to support care responsibilities are also a precondition to the achievement of gender equality at work and in the home. Equality for women represents progress for all. In order to help equip the Organization to successfully meet the challenges of delivering its mandate on social justice in the future, the ILO Director General launched the ILO Centenary Initiative on Women at Work. ˚is initiative aims to survey the place and conditions of women in the world of work and to engage ILO constituents˝Œ˝governments, workers™ and employers™ organizations˝Œ˝in concrete action to realize equality of opportunity and treatment. ˇ ˚is report is one of the ˛rst contributions to this global assessment and focuses on one of the ˛rst labour rights of women in work proclaimed by ILO constituents in 1919: maternity protection. This report also marks ILO™s contribution to the United Nations observance of the International Day of Families 2014, which celebrates the twentieth anniversary of the International Year of the Family established by the United Nations General Assembly in 1994. ˚e 2014 theme emphasizes the Preface The struggle for equality is intimately linked to the struggle for social justice in the world of work. Guy Ryder, ILO Director-General, International Women™s Day 2014
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x Maternity and paternity at work Law and practice across the world international community™s recognition that families and policies to support them matter to the achievement of internationally agreed development goals and should be advanced further. ˘The report reviews national law and practice on both maternity and paternity at work across the world. Rights and practices that recognize the fundamental need and responsibility for parenthood of both women and men are mutually reinforcing and crucial for the achievement of equality of opportunity and treatment. Drawing from the ILO Working Conditions Laws Database˝Œ˝Maternity Protection, the comments of the ILO Committee of Experts on the Application of Conventions and Recommendations and ILO research, the report provides a rich international comparative analysis on the state of legal protection of maternity and paternity at work. It is based on an extensive set of new legal and statistical indicators, including coverage in law and in practice, which pro -vide a global and regional review of national legislation and practices as well as their evolution over the last 20˝years, including in light of the recent economic crisis and austerity measures. So far, 66 ILO member States have rati˛ed at least one of the maternity protection Conventions and 43˝have ratified Convention No.˝156. Moreover, whether rati˛ed or not, the Conventions have had a very broad inuence, with virtually all countries having adopted maternity protection legislation. Over the last 20˝years, there have been noticeable improvements in terms of longer rest periods at the time of childbirth, and movement away from employer liability systems of ˛nancing paid maternity leave. An increasing number of countries are also implementing measures to support both mothers™ and fathers™ care responsibilities, such as paternity, parental and adoption leave, as well as ser -vices and facilities to enable nursing and childcare. However, progress has been uneven across ILO member States and needs to be expedited. Supporting maternity and paternity at work still faces a number of diverse challenges. Over 800 million mothers around the world are still not adequately protected with leave and cash bene˛ts in case of maternity. Almost 80˝per cent of these workers are found in Africa and Asia. E˙ective access to quality maternal health care is still not universal. Discrimination based on pregnancy, maternity and family responsibilities is endemic everywhere. Many formal and informal workplaces remain unsafe and unhealthy for all workers, espe -cially pregnant and nursing women. Fathers™ take-up of childcare leave is still very low. Care provision for children, dependent elderly and people living with permanent or temporary disabilities or illnesses still lacks the accessible and quality services and facilities that recognize, value and support care work˝Œ˝both paid and unpaid˝Œ˝as a fipublic goodfl. ˚e impact of the crisis has further exacerbated pre-existing gaps and inequalities, oˆen with devastating consequences for families. ˚ese challenges underscore the importance of social dialogue and e˙ective tripartite policy action; the need to design and implement in an inclusive way legislation in line with international labour standards and collect statistical information in order to measure gaps and progress. ˚is report provides a current picture of where we stand and what we have learned so far on maternity and paternity at work. It also suggests that we want to be, before the ILO Centenary, in a world in which women and men do not have to sacri˛ce their lives, well-being and the care of their families in order to earn an income. We hope it will guide ILO tripartite con -stituents and the Organization™s technical assistance in making a di˙erence to the lives of working mothers and fathers and ensure that the principles of long-standing international labour standards become a reality for all everywhere. Notes 1. ILO, 2013. Report of the Director-General: Towards the cen w-tenary: Realities, renewal and tripartite commitment, Report I(A), International Labour Conference , 102nd Session, 2013. 2. UNDESA: International Day of Families, http://undesadspd. org/Family/InternationalObservances/InternationalDayof Families.aspx [26 Mar. 2014]. S O M T Chief Director Gender, Equality and Diversity Branch Conditions of Work and Equality Department
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T his report was prepared by the Gender, Equality and Diversity (GED) Branch of the Conditions of Work and Equality Department (WORKQUALITY) with contributions from other ILO technical departments and ˛eld o˜ces. Work on the report was coordinated by Laura Addati (GED), who is also its principal editor and co-author. Naomi Cassirer and Katherine Gilchrist are co-authors and carried out extensive research for all the chapters. Legal research on paternity leave and breastfeeding at work was also provided by Cynthia Morgan. Helena Perez co-designed, compiled and prepared the legal indica -tors. Statistical indicators on coverage in law and in practice were compiled and prepared by Arnaud Künzi, Gadi Saiovici, Cynthia Morgan, Beatriz Suarez Duque, Sofya Muˆishvili and Katherine Gilchrist, based on a statistical methodology developed by Michaëlle De Cock and Florence Bonnet (RESEARCH), with the technical advice of Malte Luebker (ILO Bangkok). ˚is report was based on the 2011Œ2012 update of the ILO Working Conditions Laws Database coordinated by Naj Ghosheh (INWORK) and carried out with the help of Dimity Leahy, Raul Maldonado, Andre Nunes, Helena Perez and Beatriz Suarez Duque. Valuable comments and inputs were received from: Florence Bonnet (RESEARCH); Kroum Markov, Katerine Landuyt and Elisabeth Fombuena (NORMES); Emmanuelle St-Pierre Guilbault, Victoire Umuhire, Cristina Lloret, Christina Behrendt and Hiroshi Yamabana (SOCPRO); Shauna Olney, Susan Maybud, Adrienne Cruz, Martin Oelz and Chantal Dufresne (GED); Julia Faldt (ILOAIDS); María José Chamorro (ILO San José); Bodhi Pieris and Luis Frota (ILO Pretoria); Ruth Castel Branco and Igor Felice (ILO Maputo). Charlotte Beauchamp (PUBL), José Garcia and Priscille Latchman (PRODOC); and Brigitte Honma (GED) coordinated the editing, graphic design and publication of the report. ˚anks go to Philippe Marcadent (INWORK) for his support to this project and to the ILO Department of Communication and Public Information for the coordination of the launch of the report and related communication activities, in particular: Martin Murphy, Carla Drysdale, Adam Bower, Laetitia Dard, Jean-Luc Martinage, Hans von Rohland, Sandra Kuchen and Marco Minocri. Acknowledgements
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