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Law and

practice across the world

Maternity and paternity at work

Maternity and paternity at work -

Law and practice across the world

INTERNATIONAL LABOUR OFFICE

GENEVA

Maternity and paternity at work

Law and practice across the world

Copyright © International Labour Organization 2014

First published 2014

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Addati, Laura; Cassirer, Naomi; Gilchrist, Katherine Maternity and paternity at work : law and practice across the world

International Labour Oce. - Geneva: ILO, 2014

ISBN 978-92-2-128630-1 (print)

ISBN 978-92-2-128631-8 (web pdf)

International Labour Oce

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

Graphic and typographic design, manuscript preparation, copy editing, layout and composition, proofreading, printing, electronic publishing and distribution.

Contents

1

Introduction

1

Executive summary

xiii

Acknowledgements

xi

Preface

ix 7

Maternity leave

2.1?Duration of maternity leave8

National conformity with ILO standards on duration of maternity leave9 Trends between 1994 and 2013 in the duration of maternity leave11

When can maternity leave be taken?12

Extension or reduction of the maternity leave period14

2.2?Maternity cash bene ts16

Amount and duration16

Methods of calculating cash benefits17

National conformity with Convention No. 183 on duration of maternity leave and cash benefits18

2.3?Financing of maternity cash bene ts20

Financing mechanisms around the world20

National practice25

Trends between 1994 and 2013 in level and source of funding27 National conformity with Convention No. 183 on duration, amount and source of funding 30

2.4?Scope and eligibility requirements34

Estimates of coverage in law and in practice of paid maternity leave35 Workers excluded from paid maternity leave provisions37

Eligibility requirements for maternity leave42

Eligibility requirements for maternity cash benefits43 Social assistance cash benefits to women who do not qualify for social insurance benefits44 iv Mat ernity and paternity at work Law and practice across the world 89

Health protection at the workplace

5.1 Arrangement of working time90

Night work90

Overtime92

Time o for medical examinations92

5.2 Dangerous or unhealthy work94

Workplace risk assessment96

Protective measures related to maternity97

73

Employment protection and non-discrimination

4.1 Employment protection during maternity76

Protection against dismissal in national laws76

Length of protection against dismissal in national laws77

Permissible grounds for dismissal78

Burden of proof78

Compensation and other remedies in case of dismissal80

Guaranteed right to return to work80

Maintaining employment benefits82

4.2 Non-discrimination in employment in relation to maternity82

Legal prohibition against discrimination in relation to maternity84

Prohibitions against pregnancy tests85

Monitoring and implementation85

51

Paternity, parental and adoption leave

3.1 Paternity leave52

National provisions and duration52

Eligibility for paternity leave56

Cash benefits57

Trends from 1994 to 2013 in paternity leave provision59

3.2 Parental leave60

National provisions and duration64

Eligibility for parental leave64

Cash benefits65

Take-up rates65

Flexible leave arrangements and other innovative policies67

3.3 Adoption leave69

Law and practice across the world Maternity and paternity at work v

Appendices

I. Me thodological notes and summary of information available in the ILO Working Conditions Laws Database, by region 130

II. Ke y national statutory provisions

on maternity leave, by region, 2013 133
III. Es timates of coverage in law and coverage in practice of paid maternity leave, by region, 2010 144
IV. Ke y national statutory provisions on paternity and parental leave, by region, 1994 and 2013 150
V. Ke y national statutory provisions on employment protection and non-discrimination, by region, 2013 167
VI. Ke y national statutory provisions on health protection at the workplace, by region, 2013 175
VII. Ke y 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 breaks102

Provision and remuneration102

Trends in nursing breaks provision from 1994 to 2013104

Number and duration of nursing breaks104

Duration of the entitlement to nursing breaks105

Scope106

Daily reduction of working hours107

6.2 Nursing and childcare facilities108

101
7

Conclusions

7.1 What works for maternity

and paternity at work 116
115
129
vi Mat ernity and paternity at work Law and practice across the world

Figures

2.1 St atutory duration of maternity leave, 2013 (185 countries and territories)9

2.2 St atutory duration of maternity leave, 1994 and 2013 (139 countries)11

2.3 Am ount of cash benets and maternity leave duration, 2013 (167 countries)18

2.4 So urce of funding of maternity leave cash benets, 2013 (185 countries and territories)26

2.5 So urce of funding of maternity leave cash benets, 1994 and 2013 (144 countries)29

2.6 Pe rcentage of countries reaching the ILO standards on length of maternity leave,

paymentandsource of funding, 2013 (167 countries)31

3.1 Pr ovision of statutory paternity leave by duration, 2013 (167 countries)53

3.2 So urce of funding of paternity leave benets, 2013 (78 countries)58

3.3 Pr ovision of statutory paternity leave, 1994 (141 countries) and 2013 (167 countries)59

4.1 Bu rden of proof, 2013 (144 countries)79

4.2 Ri ght to return to work, 2013 (146 countries)81

5.1 Ti me o for prenatal medical examinations, 2013 (156 countries)93

5.2 St atutory provision on dangerous or unhealthy work, 2013 (160 countries)95

6.1 St atutory provision of nursing breaks, 2013 (160 countries)103

6.2 St atutory provision of paid nursing breaks, 1994 and 2013 (136 countries)104

6.3 Du ration of the entitlement to nursing breaks, 2013 (123 countries with provisions)106

6.4 Pr ovision of nursing facilities, 2013 (159 countries)108

Maps

2.1 St atutory duration of maternity leave, 2013

(185 countries and territories) 10

2.2 So urce of funding of maternity cash benets, 2013

(185 countries and territories) 30

2.3 Co verage in law - maternity leave: Percentage of women workers

entitledtomaternity leave, 2010 (173 countries)35

2.4 Co verage in law - maternity leave cash benets: Percentage of women

workers entitled to maternity leave cash benets, including workers entitledto voluntary coverage, 2010 (172 countries) 36

2.5 Co verage in practice - maternity leave cash benets: Percentage of women

workers contributing to a maternity cash benets scheme or otherwise protected for income loss during maternity, 2010 (117 countries) 37

3.1 Co untries providing paternity leave by duration, 2013

(167 countries) 53
Law and practice across the world Maternity and paternity at work vii Boxes

2.1 So cial insurance cash benets for maternity in Namibia21

2.2 In dividual employer liability for maternity

cash benets in Malaysia 22

2.3 Sh ifting from employer liability to maternity insurance:

Examples of ILO technical assistance

23

2.4 Ex amples of non-contributory maternity cash benets25

2.5 Pa id maternity leave during the economic crisis28

2.6 Th e cost of maternity benets: Is maternity protection aordable?33

2.7 Ex tending maternity cash benets to the self-employed41

2.8 So cial cash transfers and employment guarantee schemes (EGS)

delivering maternity protection to vulnerable workers 42

3.1 Ex amples of collective bargaining agreements

providing paternity leave 58

3.2 Pare ntal leave: Shared or individual rights?62

3.3 Th e eects of the economic crisis on paternity

and parental leave and benets 66

4.1 Re gional instruments addressing discrimination

in employment in relation to maternity 84

6.1 Ma uritius, the Philippines and India:

Expanding the scope of breastfeeding coverage

107

6.2 Pr omoting breastfeeding and the establishment

of nursing facilities 110

6.3 Sup porting the care needs of the most vulnerable

through childcare 112

Tables

2.1 Co mpliance with Convention No. 183 on duration of maternity leave, level of

payment and source of funding, by provision and region (167 countries)32

3.1 Ex amples of leave provisions in national legislation

which can be used by fathers at the time of childbirth 54
T he y ear 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 rearmed 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 “a 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 women", 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 eorts to improve health, equality and job quality. These issues are therefore crucial for the Post-2015 Development Agenda and make maternity protection and work-family 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 aer 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-governments, workers" and employers" organizations-in concrete action to realize equality of opportunity and treatment. 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

Guy Ryder, ILO Director-General,

International Women's Day 2014

x Mat ernity 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-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

20years, including in light of the recent economic

crisis and austerity measures.

So far, 66 ILO member States have ratied at least

one of the maternity protection Conventions and

43have ratified Convention No.156. Moreover,

whether ratied or not, the Conventions have had a very broad inuence, with virtually all countries having adopted maternity protection legislation. Over the last

20years, 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 benets in case of maternity. Almost 80per

cent of these workers are found in Africa and Asia. Eective 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-both paid and unpaid-as a "public good". e impact of the crisis has further exacerbated pre-existing gaps and inequalities, oen with devastating consequences for families. ese challenges underscore the importance of social dialogue and eective 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 sacrice 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 dierence 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. IL O, 2013. Report of the Director-General: Towards the cenw-

tenary: Realities, renewal and tripartite commitment, Report I(A), International Labour Conference, 102nd Session, 2013. 2. UN DESA: International Day of Families, http://undesadspd.

Families.aspx [26 Mar. 2014].

S O M T

Chief Director

Gender, Equality and Diversity Branch Conditions of Work and Equality Department T hi s 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 oces. 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 Muishvili 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 2011-2012 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

quotesdbs_dbs29.pdfusesText_35

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