|Maternity Protection at Work: Revision of the Maternity Protection Convention (ILO, 1997, 122 p.)|
|1. Maternity protection at work|
|3. Maternity leave|
|4. Employment protection|
|5. Cash and medical benefits|
|6. Health protection of mother and child|
|7. Beyond childbirth: Parental, paternity and adoption leave|
|8. Looking to the future|
While maternity leave is designed to protect working women during their pregnancy and recovery from childbirth, other types of leave also exist. Parental, paternity and adoption leave assist parents in adapting to the arrival of a child and allow them to find a better balance between family and work responsibilities. This chapter analyses the legislation regulating these types of leave and its practical effectiveness.
The way in which parenting is organized is an immediate concern for a large part of the workforce. The 1980s saw an increase in dual-earner households with young children, whose parents were both working full time. This reality has created a growing demand for policies to help provide adequate care for these children. Womens desire to remain in the workforce through their child-bearing years, coupled with the recognition of the importance of careful nurturing during the childs early years, the shortage of good quality out-of-home child care facilities and costs, have forced the search for alternative policy options.
Moreover, the creation of conditions that enable workers to choose the type of employment best suited to their individual family circumstances, free from discriminatory constraints, is fundamental to the principle of equality of opportunity and treatment in employment. The International Labour Conference adopted in 1981 the Workers with Family Responsibilities Convention (No. 156) and Recommendation (No. 165). Because measures to allow men and women to harmonize their work and family commitments are a natural extension of well-accepted principles of equality, Convention No. 156 and Recommendation No. 165 must be viewed as a necessary part of the overall goal of ensuring that every man and woman should have the opportunity to play a full role in social, economic, public and family life.
Recommendation No. 165 provides men and women workers with the right to parental leave in order to take care of their children, while the duration and conditions of such leave should be determined in each country. However, in the Recommendation, parental leave is regarded as part of an integrated approach rather than in isolation from other initiatives, which may contribute to the reconciliation of family and work responsibilities. Other forms of support for employees with family-related responsibilities envisaged in this instrument include the promotion of child care, flexible working hours, progressive reduction of daily hours of work, and the availability of part-time jobs with social benefits or tax relief for workers with family responsibilities.
The right to parental leave
The right to parental leave - a long-term leave to allow parents to take care of an infant or young child - is widely recognized as an important way of reconciling professional and family life. Children are clearly the most obvious beneficiaries, but the benefits extend to workers, employers and society as a whole.
The welfare of the child is the raison de of any scheme of parental leave. Recent results of child development research show that, although every stage of life has its own importance, no stage is more important for shaping an individuals future development and life course than the first three years of life.1 Therefore, social policies directed at very young children and their families - providing for income, services (care and support) and time for parenting - are essential for a better balance between family and work responsibilities and for a better beginning for children.
By introducing equal opportunity for both mothers and fathers to take time off for child-rearing, parental leave schemes can also be an effective tool for promoting gender equality. Indeed, it is important to distinguish the physiological demands of pregnancy and childbirth, which only women bear, from the care and nurturing of children, which can be shared by men and women. As noted in a report by an African trade union, while it is ordained by nature that only women can bear children, there is nothing natural about the fact that in many societies women are expected to bear the responsibility of raising children alone. Women engaged in wage employment in particular face the difficult burden of fulfilling their dual role of mother and worker.2
As the end of the century approaches, many employers will find themselves managing employees whose productivity and availability are directly related to their ability to achieve a balance between their professional and family life. Parental leave may allow firms to make better use of human resources by reducing labour turnover and absenteeism. Employee performance may also improve when the worker returns to work after leave feeling more motivated and less stressed. A study in Germany, commissioned by the Institut fwicklungsplanung, found that 90 per cent of companies had experienced no major problems with parental leave or had not noted any significant costs.3 In Belgium, the career break system appears to have led to savings in public expenditure. The unemployment benefit saved when unemployed workers replace workers taking leave has been estimated to have reduced public expenditure by BF7.85 billion in 1992.4
A review of the legislation of 138 ILO member States showed that 36 countries - mainly industrialized countries - have enacted provisions governing parental leave. Among these, the Nordic countries offer the most attractive policy packages to working parents, with countries such as Denmark or Sweden providing subsidized, high-quality, out-of-home child-care services, along with time for parenting. These arrangements are supported with a high level of compensation for loss of earnings, through parental benefits, family allowances or guaranteed child maintenance.
The approach adopted on the federal level in the United States is significant because it is completely gender neutral. As in Australia and New Zealand, the leave is unpaid. The Family and Medical Leave Act gives covered employees the right to 12 weeks of unpaid leave for specified family or medical reasons. The permitted family reasons include the birth and care of the newborn child of the employee. No distinction is made between maternity or paternity leave and, subject to the employers approval, the leave may be taken intermittently or as part of a reduced schedule.
In the Central and Eastern European countries, previously extensive child-care systems are being circumscribed through the closure of centres and the exclusion of the population at large through the charging of very high fees.5 A return to traditional values in these countries, as highlighted in a recent sociological study,6 has led many women to welcome the idea of remaining at home, an option which was perceived to be a luxury enjoyed by Western women. Not surprisingly, an at-home child-rearing policy has emerged, which is less costly for the State and assures children better care than in poor quality child-care centres. However, it also results in discontinuity in employment for mothers.
Most parental leave schemes typically offer guaranteed return to employment for the mother or the father who takes time off for child-rearing purposes. However, among those countries that provide for parental leave, major differences can be found with regard to the conditions of leave, the payment of benefits and the degree of flexibility afforded to parents. These differences are not only of theoretical interest. How the entitlements are structured is crucial to their success. Thus, while in some countries parental leave schemes have proved to be effective to some extent, in many others the enactment of legislation has not necessarily met the needs of working parents.
In all countries, parents wishing to take parental leave have to meet certain legal conditions in order to be eligible for such leave and benefits. National provisions sometimes explicitly exclude specific categories of workers, such as seasonal workers or workers employed in certain industries or occupations or in small enterprises.
Additional eligibility requirements may come into play as well, mainly concerning previous employment. Although such requirements vary across countries, the common pattern is to require six to 12 months of continuous work with the same employer. Nevertheless, in some countries (for example, Belarus, Finland, Japan, Hungary, Italy, Republic of Korea, Norway, Russian Federation, Tunisia or Ukraine), a qualifying period of previous employment is not required. The increasingly precarious nature of employment is making it more difficult for employees to meet length-of-service requirements, particularly for women who tend to have less job tenure and, at any given age, lower employment retention rates.7 Among the OECD countries, for example, women had more short-term turnover than men in 1991. On average, 22 per cent of employed women had been with their current employer for less than one year.8 In all the countries of the European Union, the rate of temporary employment for women was higher than that for men.9 Finally, while conditions for benefits may be more restrictive than for leave, as is the case in Austria, Iceland and Norway, in some countries entitlement to leave is automatically associated to benefits, as in Germany, Poland or the Russian Federation.
An essential distinction between schemes of leave is whether they are paid or not. When schemes do not guarantee any payment, it is difficult - if not impossible - for lower paid workers to take advantage of them. In 11 of the 36 countries which were found to have enacted regulations on parental leave, parents have to be self-reliant in order to be able to take leave, as the State will not provide them with any financial help. Most of the remaining countries offer either a low-paid flat rate (for instance, 600 DM per month in Germany; £55.70 per week in the United Kingdom) or a proportion of wages (30 per cent in Italy and Poland; 50 per cent in Tunisia; 60 per cent in Cuba and Lithuania). Again, the maximum periods of leave and benefit entitlements do not necessarily coincide. In countries such as Canada, Germany, Greece, Netherlands, Portugal and Sweden, the benefits are available for a shorter period than the leave.
However, a number of countries, including France and the United Kingdom, have tried to compensate the absence or low rate of benefits by providing other family benefits aimed at improving the material conditions of children and maintaining, to some degree, the living standards of women. In the United Kingdom, for instance, the vast majority of single mothers are recipients of the Income Support Benefit, and depend on this allowance for subsistence while their children are young.10
An OECD study,11 comparing the take-up rates in countries with a policy of high earnings-related benefits with countries which offer lower or no benefits attached to parental leave, suggests that a strong link exists between earnings replacement rates and take-up rates. In countries such as Denmark, Norway and Sweden, which provide an allowance which compensates to some extent for the loss of wages, parental leave is used by nearly all eligible families.12
Parental leave as a means to equality: The role of fathers
In the vast majority of the countries which offer parental leave, however, it is designed as a family right to be shared between the mother and the father, although it cannot usually be taken by both simultaneously. In Armenia, optional part- or full-time unpaid leave for child care may be granted to either parent, grandparent or relative until the child is 3 years old. Partially paid leave is provided in Azerbaijan to either parent or to another member of the family who looks after the child up to the age of 3. In contrast, in countries such as Cuba, Jordan, Republic of Korea, Mexico, Romania, Tunisia, Turkey and the United Kingdom, only mothers can take leave for child-care purposes.
Nonetheless, even in those countries where men have the possibility of taking parental leave, it is usually the mothers who actually do so. Mens take up-rates are generally low. Studies in Denmark, Finland, Germany and Norway suggest that less than 5 per cent of eligible fathers take parental leave.13 Although, in Sweden, some 24.5 per cent of eligible men took parental leave in 1987, they took only an average of 26 days of leave.14 In France, a 1992 survey of public and private sector workplaces commissioned by the Caisse nationale dallocations familiales estimated that 99 per cent of parents taking parental leave were mothers.15 In Austria, up until January 1997, among claimants of parental leave 75,912 were women and only 485 were men.16
What are the reasons for this phenomenon? While the traditional social expectations of male and female roles relating to child-rearing undoubtedly play a part, other factors are crucial in explaining the limited utilization of leave entitlements by fathers. The gender inequalities inherent in the labour market and the structure of entitlements contribute to mens infrequent use of leave. In the majority of the cases, fathers take parental leave only when a relatively high level of compensation for loss of earnings exists. Taking into account that occupational and wage structures still tend to favour men, the loss of the fathers income places a heavier financial burden on the family, making it difficult to cope. In addition, as the dominant pattern in most countries is a low flat-rate benefit, parental leave is currently a viable option only for upper middle-class, two-parent families. Most commonly, the man provides the primary economic support for the family while the mother cares for the child at home. Parental leave, in this case, may contribute to maintaining, rather than decreasing, gender inequalities in the labour market.
Specific measures aimed at creating equilibrium between professional and family life are essential for securing job opportunities for women. However, for such measures to be more effective, they may need to be supplemented with action focused on tackling the problem of horizontal and vertical segregation and wage discrimination. In addition, to enable both fathers and mothers to organize parental leave in a way that best suits their individual circumstances, more flexible arrangements need to be implemented.
To encourage fathers to take leave, countries such as Belgium, Denmark, Greece, and the Netherlands have allotted an individual and non-transferable portion of leave to each of the parents. This has also been the approach of the recently enacted European Union Directive 96/34/EC,17 which transposes into European Union law the framework agreement concluded by the European-level social partners. Since most of these regulations have been in force for a relatively short time, it is too early to make any definitive statements about the long-term impact of these instruments on womens career patterns.
Security against dismissal is vital in order to avoid weakening parents ties to the labour market. Most schemes make these safeguards an integral part of leave, although with a different degree of protection. While employees taking parental leave have the right to be re-engaged in a similar position in Germany, New Zealand, Portugal, Russian Federation and the United States, in other countries - for instance, in Belarus, Cyprus and the Republic of Korea - they are entitled be to be reinstated in the same position they previously held. In Spain, parents have the right to reinstatement during the first year of leave, and a preferential right if they decide to take the remaining two years of leave.
Duration of parental leave
Parents in many countries are able to take time off from work to stay with their children for an extended period of time. Azerbaijan, Belarus, Finland, France, Germany, Norway, Poland and Spain offer parents the longest potential leave with their children (three years), but the most common leave period is one year, as in Austria, Denmark, Israel, Japan, Republic of Korea, New Zealand, Romania, Russian Federation, Slovenia, Sweden and the Ukraine. The United Kingdom provides one year and one month. In Canada, Iceland and Turkey, parental leave may last for six months. In Cyprus and the United States, parents are entitled to three months of leave.
Additional time for parenting may be granted at industry or enterprise level. In Germany, retail industry employees with at least four years of service may take up to four years of leave, with a sharing of the leave between parents working in the same establishment. Returnees are entitled to come back to an equivalent job and the years of parental leave are counted for the purpose of pay progression. Under an agreement with a German white-collar trade union in force since 1 January 1996, IBM grants employees with 18 months continuous service an extension of parental leave up to a maximum often years in the case of several children. The company commits itself to provide comparable employment on return, and reserves the right to offer work at a nearby plant if no permanent position is vacant at the original workplace.18
These different periods of leave have a significant impact on peoples ability to return to work. Short periods of leave may be exhausted before the parent necessarily wishes to return to work, often leaving a difficult choice between whether to continue to care for the child without a job (and without guarantee of reinstatement) or to place the child in day care and return to work. In contrast, long periods of leave may lead to the erosion of skills and render it more difficult for working parents to re-enter the labour market, unless suitable retraining is provided. Under the Spanish parental leave scheme, employees have the right to undergo training courses during their leave, and employers are expected to offer appropriate training opportunities, particularly as the employees return to work approaches.
Flexibility in leave provisions: Part-time, fractioning and other arrangements
Flexibility in leave provisions allows parents to organize their time away in the manner that best suits their familys needs. Since 1994, Norway has built flexibility and choice into its parental leave system, allowing parents a total time allotment which may be taken in some combination of full-time and part-time leave, with cash benefits paid accordingly. Various options for organizing leave are based largely on employees preferences. For example, parents may choose to work 50, 60, 75, 80 or 90 per cent of normal hours. If employees choose a longer working day, then a lower rate of the compensatory benefits would apply. Thus, employees have great freedom to determine care arrangements most suitable to their own circumstances.
A certain degree of flexibility has been introduced in Croatia, France, Finland, Norway, Russian Federation, Slovenia, Sweden and the Ukraine, where leave programmes allow working parents to continue work on a part-time basis. Another option - available in Austria, Spain, Finland, Norway and Sweden - is for parents to reduce their working hours until their children enter compulsory schooling. These arrangements allow working parents to remain connected to the labour market, prevent the erosion of skills and facilitate the transition to full-time employment once their children start school.19
In some countries, parental leave continues over a specified period of time immediately after maternity leave. In others - as Germany, Greece, Poland, Romania, Sweden and the United States - parents have the possibility of fractioning the leave period instead of taking it all at once. Such provisions may facilitate the up-take rate of fathers, who seem to be more likely to take leave as children get older. Among Swedish fathers who took parental leave in 1989/90, 21 per cent of them did so to take care of a child under 6 months, 35 per cent to care for a child aged 9 to 11 months, and 50 per cent to take care of a child over 14 months of age.20
In the majority of the countries, fathers are entitled to take a certain number of days off at the time of the childs birth. This is called paternity leave, which is traditionally designed to enable the father to spend some time with the newborn baby and the mother, to participate in family celebrations related to the birth, and to take care of formalities. The length of this leave ranges from one to three days in Algeria, Argentina, Democratic Republic of Congo, Egypt, Guatemala, Paraguay, Saudi Arabia, Spain and Tunisia, whereas two weeks are provided in Denmark, New Zealand and Norway. In a few countries, such as Mongolia, Netherlands, Romania and Viet Nam, the length of the period of leave is not specified. In the Netherlands, it is a period of time considered to be fair. In Bangladesh and Myanmar, men are entitled to casual leave, which is ten days and six days respectively, for unspecified purposes. In a number of African countries, including Benin, Cameroon, Central African Republic, Chad, Comoros, Congo, Djibouti, Gabon, Madagascar, Mali, Mauritania and Togo, men are entitled to ten days leave for family events concerning the workers home.
In those countries where there is no legal right to paternity leave, such as Costa Rica, Honduras, Mexico or the Philippines, collective agreements in some economic sectors tend to include provisions to that effect. In Uruguay, where only civil servants are entitled to paternity leave, some agreements at enterprise level extend the right to other workers. In the United Kingdom, in the absence of statutory provisions, some unions have secured the fathers right to paternity leave through collective bargaining. Under private sector collective agreements, paternity leave lasts an average of three days, while in the public sector, the average length is four to five days.21 In Bahamas, a collective agreement between the Bahamas Hospitals Board and the Bahamas Public Services Association provides for a maximum of 20 days of unpaid paternity leave in any one year.
Employees who decide to adopt a child may not be entitled to benefit from a leave policy designed for women and men who have a biological child. However, many countries have created an entitlement to leave for workers who adopt children, with provisions close to those for maternity, paternity and parental leave in the country concerned.
The right to adoption leave generally starts when the child arrives in the home, and - by eliminating the compulsory prenatal leave allotted to natural mothers - the entitlement may amount to less total time. In Denmark, adoption leave is four weeks shorter, and in Finland, 41 days shorter than for couples caring for their own new-born. In France, a female employee who is taking care of a child with a view towards adoption is entitled to a maximum of ten weeks leave from the date the child arrives in the home, 22 weeks in the case of multiple adoptions, and 18 weeks if the adopted child brings the number of children in the family up to three. In Australia, Finland, Iceland, New Zealand and the former Yugoslav Republic of Macedonia, parents have a right to adoption leave that is analogous to leave for the birth of a child under the parental leave provisions.