8. Looking to the future

Among the instruments adopted at the First Session of the International Labour Conference was the Convention concerning the employment of women before and after childbirth, 1919 (No. 3). Convention No. 3 laid out the basic principles of maternity protection: the right to leave, the right to medical benefits and the right to income replacement during leave. Leave was to be provided up to six weeks before confinement upon production of a medical certificate and was mandatory for the six weeks following confinement. Medical benefits were to include free attendance by a doctor or certified midwife. Cash benefits were to be sufficient for the full and healthy maintenance of mother and child, the exact amount being determined by the competent authority in each country. Benefits were to be provided either out of public funds or by means of a system of insurance. The right to leave was reinforced by the explicit prohibition of dismissal during a woman’s absence on maternity leave or at such time that the notice would expire during such absence.

The Maternity Protection Convention (Revised), 1952 (No. 103), retained the same principal elements of protection, i.e. the right to maternity leave, medical care and cash benefits, but the means and manner of providing these benefits were made more explicit. The 12-week minimum leave period was to include a period of mandatory postnatal leave of at least six weeks. Additional leave was to be provided before or after confinement in the event of medically certified illness arising out of pregnancy or confinement. Medical benefits were to include prenatal, confinement and postnatal care by qualified midwives or medical practitioners, as well as hospitalization if necessary. Freedom of choice of doctor and of public or private hospital were to be respected. As regards cash benefits, a minimum income replacement rate of two-thirds of the woman’s previous earnings was specified for those benefits derived from social insurance. Payroll taxes were to be paid on the basis of the total number of workers employed without distinction of sex. The principle of non-liability of the employer was made explicit. The prohibition of dismissal during a woman’s absence on maternity leave was retained, but not further strengthened.

Neither Convention No. 3 nor No. 103 has obtained a significant number of ratifications. Only 33 member States have ratified Convention No. 3, which remains open to ratification; 36 have ratified No. 103. Of these, 16 member States have ratified both instruments, bringing the total number of countries to have ratified to 53.

The preceding review of national law and practice has demonstrated that maternity protection is as high a priority for individual member States as it is for the Organization as a whole. The scope of protection is gradually being extended, although coverage is still not universal in many countries. Leave provisions often exceed the 12 weeks stipulated in Convention No. 103. Almost all member States have special measures to protect the health and safety of pregnant women and nursing mothers at the workplace, but approaches to protection vary widely from generalized gender-based prohibitions to the adaptation of working conditions according to individual needs. Parental leave arrangements in some countries provide encouragement to the sharing of child-rearing responsibilities between father and mother, but when such leave is taken predominantly by women, it may simply extend their absence from the workplace following childbirth. Employment is protected to varying degrees in many member States, though nowhere has discrimination on the basis of maternity been entirely eliminated.

In important ways, however, member States diverge in law and practice from the provisions of Convention No. 103. A large number of women remain unprotected due to sectoral or occupational exclusions, such as agricultural or domestic workers, for example. Cash benefits at some level are granted in most countries, in some through social insurance or public funds, in others directly by employers, and sometimes through mixed systems. It will be recalled that Convention No. 103 explicitly prohibits employer liability for the payment of benefits. Medical benefits in many countries are provided predominantly through public health or social security institutions, in which case individual choice of doctor and hospital may be limited. In some countries, employers bear the cost of medical care.

As evidenced in this report, laws designed to protect the health of mother and child and the employment rights of working women figure prominently in the legislation of almost every ILO member State examined. Yet many countries find it difficult to ratify highly prescriptive instruments. It has been found in the past that member States whose law and practice are in conformity with the essential provisions of an international instrument are sometimes unable to ratify or accept that instrument formally by reason of comparatively minor divergences between its precise terms and their national law and practice. These divergences may relate to the scope of the instrument or to details of application of the basic principles.

A spirit of realism must therefore imbue the provisions of any new Convention, if it is to meet the needs and expectations of most, if not all, ILO member States. A focus on commonly held principles, coupled with sufficient possibilities for governments and the social partners to work together to achieve goals in accordance with national conditions, may prove an effective means of ensuring safe motherhood and equitable employment conditions for working women.

The questionnaire has been devised with these considerations in mind. The fundamental protections on which wide international consensus has developed over the years, namely the right to leave, medical benefits and income replacement, may form the main content of the possible Convention. With regard to length of leave, the questionnaire raises the possibility of a dynamic approach, setting 12 weeks of leave as the minimum standard - a target already achieved by a large number of member States - but also providing for periodic national tripartite consultations to examine the possibility of extending the period of leave. Such an approach would provide encouragement for those who are able to surpass current provisions to do so.

A similarly dynamic approach may be possible with regard to cash benefits. Their main purpose - the full and healthy maintenance of mother and child in accordance with a suitable standard of living - is retained from Convention No. 103, but some flexibility in achieving this goal is possible in two important ways. First, the question is raised as to the standard rate of income replacement, i.e. whether it should be at the rate of two-thirds of a woman’s previous earnings or of the amount taken into account for computing benefits or, alternatively, at a flat rate of an appropriate amount. Once again, periodic national tripartite consultations might examine the possibility of increasing the amount or rate of benefits. The possibility is also raised of permitting ratification of the Convention by a Member which provides cash benefits at a lower rate if (a) that Member’s economy and social security system are insufficiently developed, and (b) if that Member provides maternity cash benefits at a rate no lower than those payable for sickness or temporary disability in accordance with national law and practice. In that event, the Member would describe in its reports on the application of the Convention the measures taken with a view to raising that rate. The second element of flexibility regards the means of financing cash benefits. This question is raised in the section of the questionnaire relating to the content of a possible Recommendation, with a view to allowing for variations in law and practice in this regard. The questionnaire raises the possibility of financing (a) through compulsory social insurance, (b) through public funds, and (c) in a manner determined by national law and practice.

A further question related to the content of a Convention raises the possibility of strengthening employment rights to guard against unfair dismissal and to ensure the right to return to work after leave. Access to employment-related protections, such as leave and medical and cash benefits, might thereby be secured.

Questions regarding the content of a possible Recommendation cover a number of the issues raised in this report where national law and practice vary widely, but where consensus might be achieved in terms of setting desirable targets. These relate to the length, distribution and possible extensions of leave; the level and extent of benefits; the financing of benefits; employment protection; health protection; provisions for nursing mothers; and related types of leave.

Members are invited in their replies to indicate any provision regarding the possible content of either a Convention or a Recommendation which they would prefer to include in the other instrument. Members are further invited to indicate any particularities of national law and practice with regard to maternity protection which, in their view, are liable to create difficulties in the implementation of an international instrument and to make specific suggestions as to how these difficulties might be overcome.