(introduction...)

A woman worker who becomes pregnant is immediately confronted by myriad employment-related issues, the most important of which include the effects upon her job of her pregnancy and her absence from work before and after childbirth. Will she be protected against dismissal during pregnancy and leave? Will she have the right to cash and medical benefits? If her job is physically demanding, will her employer be required to temporarily alter her work duties to accommodate her health? The answers to these questions are found in the specific legislation governing maternity protection provisions in her country. The definition of scope will determine her eligibility for protection.

The provisions of law defining the scope of persons to whom the maternity protection apply vary widely from country to country. In this chapter, these provisions as established by national legislation will be examined in light of those prescribed by the Maternity Protection Convention (Revised), 1952 (No. 103).

The scope of Convention No. 103

In Convention No. 103, the term “woman” is broadly defined as “any female person, irrespective of age, nationality, race or creed, whether married or unmarried”, and “child” means “any child whether born of marriage or not”.¹ In so defining “women,” Convention No. 103 lays down the principle of non-discrimination with respect to all women workers. The instrument thus applies to all women without qualification, if they are employed in the specified types of undertakings or occupations.

The scope established by Convention No. 103 is quite broad. It covers women employed in industrial undertakings and non-industrial and agricultural occupations, including women wage-earners working at home.² The term “industrial undertakings” is further defined with detailed descriptions of industries covered in four general sectors, whether public or private: mining; manufacturing and power generation; construction of buildings and public works; and the transport of passengers and goods by rail, sea or inland waterway. The term “non-industrial occupation” is defined to include the following types of undertaking, whether public or private: commercial establishments; postal and telecommunication services; establishments and administrative services in which the persons employed are mainly engaged in clerical work; newspaper undertakings; hotels, boarding houses, restaurants, clubs, cafes and other refreshment houses; establishments for the treatment and care of the sick, infirm, destitute and of orphans; theatres and places of entertainment; and domestic work for wages in private households. Thus Convention No. 103 covers four types of industrial undertaking and their branches and a variety of occupations carried on in numerous non-industrial undertakings, whether public or private, including two classes of occupation: women employed in the agricultural occupations³ and homeworkers.

Besides establishing broad coverage, Convention No. 103 allows countries to provide for limited exclusions. In addition to allowing countries to exempt undertakings in which only members of the employer’s family are employed.⁴ Convention No. 103 allows member States to provide for five additional types of exceptions at the time of ratification: certain categories of non-industrial occupations; occupations carried on in agricultural undertakings (other than plantations); domestic work for wages in private households; women wage-earners working at home; and undertakings engaged in the transport of passengers or goods by sea. Should a Member make a declaration providing for exceptions, it is required to make periodic reports concerning the application of the Convention to these excluded categories.⁵

Scope of national legislation

Ascertaining the exact extent to which the laws of each country cover the types of undertakings and occupations referred to in Convention No. 103 is difficult due to the variety of ways in maternity protection is provided in different countries.⁶ In many countries, all major provisions relating to maternity protection are found within a single labour code, in which case there is a single definition of the persons to whom the provisions apply. In others, however, maternity protection provisions are contained in various pieces of legislation which relate to specific aspects of maternity protection, such as employment protection, social security, health and safety and equal opportunity, to name the most common. In such cases, each legislative instrument will have a separate provision describing the persons to whom the text applies. While the scope may be defined identically among the different legislative schemes, this is not always the case, and coverage may also be modified by regulations or collective bargaining agreements.

The differences among scope provisions of relevant legislation and the occasional lack of clarity in definitions used may give rise to gaps in coverage which are difficult to assess. Thus, within a particular country, a woman may be entitled to some aspects of maternity protection, but not others. The most common instance is that of an employed woman who has a right to maternity leave under the general labour code, but no right to cash benefits under social security because coverage for cash benefits is narrower than that for maternity leave.⁷

A survey of the manner in which national legislation addresses the persons, sectors of economic activity and categories of workers covered shows that the scope is wide enough in many countries to include the undertakings and occupations covered in Convention No. 103. Nonetheless, significant problems still exist with respect to coverage of women employed in agriculture, or those working as homeworkers, domestic workers or on a casual, contract or temporary basis.

Persons covered

The scope of maternity protection under national legislation in some countries includes to all employed women, although important restrictions exist with regard to age, residence and income level, for example.

The term “woman” is generally defined broadly in a manner which accords with the approach taken in Convention No. 103, but some restrictions have been found in the legislation of a few countries. Some specify an age range for eligibility for benefits, although this generally corresponds to or exceeds a woman’s child-bearing years. For example, this is the case with regard to qualification for cash benefits in Dominica, where women between the ages of 16 and 60 years are eligible; in the Dominican Republic, where women between the ages of 14 and 60 years are eligible; and in Finland, where women workers between the ages of 16 and 64 years are eligible. Medical benefits may also be limited to legal residents, as discussed in Chapter 5.

There are other restrictions upon women who are eligible. Women may be excluded from coverage if they earn too high a salary, as in South Africa. Women working as high-level managers in Paraguay and managers in Singapore are excluded. In some countries, eligibility to leave may also be limited to a certain number of pregnancies. In rare instances, maternity protection rights may be denied if an unmarried woman becomes pregnant.⁸

Even if a worker falls within the scope of maternity protection as provided within national legislation, she may not be eligible for benefits because of the existence of time-in-service requirements or minimum contribution levels to qualify for social security benefits. Qualifying periods of three to 12 months of employment are frequently found in national laws and collective agreements with regard to access to benefits. While technically not part of the scope definitions, eligibility requirements operate as a means to narrow the application of the maternity protection provision. Thus, women who would otherwise be covered are not protected for the first months or year on the job.

Sectors of economic activity

There are few examples in national legislation in which the coverage of industrial and non-industrial undertakings is defined with the detail of Convention No. 103. While types of undertakings are often specified, more often coverage is defined according to economic sectors, whether public or private.

Private and public sectors

In many countries, such as Burundi, Chile, Ecuador, Egypt, Haiti and Honduras, maternity protection applies to women in the public and private sectors, though the law may also contain specific exclusions. The terms public and private undertakings are also used in countries such as Indonesia. Such perimeters lay the groundwork for broad coverage, even if the legislation also provides for exclusions.

Public sector workers, including civil servants and other types of workers employed by national, state, provincial or local government, are usually covered by maternity protection provisions under separate legislation, as in Ecuador, Greece, India, Japan, Luxembourg, Madagascar and Togo. Often the provisions are more favourable than those applicable to the private sector. For example, public servants may have a right to longer maternity leave or cash benefits equal to a greater percentage of their salary.

Industrial and non-industrial sectors

Beyond including the public and private sectors within the definition of undertakings covered, some countries specifically mention economic sectors when defining scope. Industry or industrial establishments in general are covered, as in Cambodia, Germany, Lebanon and Nepal. Countries may also list types of industries. Factories and mining are specifically covered in Bangladesh and India as are mining and construction in the Islamic Republic of Iran and transport systems in Cambodia. Some countries also make specific mention of non-industrial sectors. Commercial undertakings are covered in Ghana, Greece, India and Japan, clerical services in Ghana and establishments employing persons for circus and other performances in India.

In national legislation, there are few exclusions by economic sector, although in some countries, workers employed in the transport of goods and those employed in non-industrial undertakings, such as theatres and newspapers, are excluded. There are also a few countries in which women working in the fishing industry are excluded, an exception not specifically mentioned in the Convention. In general, however, national legislation in the majority of countries provides for maternity protection to women employed in industrial and non-industrial enterprises in the private sector.

Agriculture

Women workers in the agricultural sector are specifically covered in countries such as Bahrain, Belize, Cambodia, Czech Republic, Ghana, Guinea-Bissau, Islamic Republic of Iran, Italy, Lebanon, Greece, Hungary and Madagascar, though often coverage is provided by separate legislation. In some countries, only permanent agricultural workers are covered, as in Angola and Egypt. In India, agricultural workers employed by plantations are covered, as are those working on tea estates in Nepal and Pakistan. In recent years, maternity protection coverage has been extended to agricultural workers in a number of countries, including Argentina, Ecuador and Portugal.

However, in many countries, agricultural workers are not covered, as in Bolivia, Brazil, Dominica, El Salvador, Lesotho, Peru, Philippines, Saudi Arabia, Sudan, Swaziland, Syrian Arab Republic, Turkey and Yemen. This exclusion of agricultural workers may affect a large percentage of the female workforce in some countries, where a large portion of the population works in the agricultural sector. For example, 28 per cent of women working in Bolivia work in agriculture; 10 per cent in Brazil; 86 per cent in Lesotho; 26 per cent in Peru; 34 per cent in the Philippines; 16 per cent in Saudi Arabia; 84 per cent in Sudan; 74 per cent in Swaziland; 60 per cent in the Syrian Arab Republic; 84 per cent in Turkey; and 45 per cent in Yemen.⁹ The exclusion of agricultural workers from the scope of maternity protection thus means that enormous numbers of women are without protection.

Types of enterprises

Characteristics of enterprises are in some cases used to define scope in national legislation. One such characteristic is the size of the enterprise, in recognition of the difficulties which small employers may have in complying with the law. A survey of employers in the United Kingdom found that four out of ten establishments with fewer than 25 employees experienced difficulty in covering the duties of a woman worker out on maternity leave, as compared to two out of ten establishments with 25 to 499 employees and fewer than one in ten establishments with more than 500 employees.¹⁰ In the United States, the Family and Medical Leave Act applies only to businesses with 50 or more employees within a 75-mile radius, while the federal Civil Rights Act, which prohibits discrimination against women on the basis of pregnancy, applies only to businesses with 15 or more employees.

Businesses employing less than a certain number of employees are excluded from coverage in some countries. For example, in India, commercial establishments employing fewer than ten employees are excluded, as are industrial enterprises of that size in Myanmar and Nepal, and in Jordan, Republic of Korea and Kuwait, enterprises employing less than five employees are not covered. Enterprise size criteria may effectively exclude large numbers of women employees from coverage, depending upon their distribution in the labour market. For example, in the Republic of Korea, 65 per cent of employed women work in enterprises employing fewer than five workers,¹¹ whereas leave and benefits are accorded to workers in enterprises employing five or more permanent workers.

Other enterprise characteristics specified when defining scope may include their religious or charitable nature, as in Cambodia, and/or whether the enterprise is a family business. Enterprises in which members of the same family are employed are excluded from coverage in many countries, such as the Dominican Republic, Guyana, Haiti, Iraq, Japan, Jordan, Grenada, Mexico, Myanmar, Pakistan, Saint Lucia, United Republic of Tanzania, Tunisia and Uganda. Sometimes the exclusion is limited to family workers employed by a spouse or parent, as in the province of New South Wales in Australia, or to family members living in the same household, as in the Republic of Korea.

Categories of workers

Aside from defining coverage based upon the sector in which a woman works and the characteristics of the enterprise in which she is employed, some national legislation also takes account of the category of worker or form of work performed. A variety of worker categories are specifically mentioned in national legislation as included in coverage, such as acrobats, actors, artisans, artists, athletes, domestic workers, homeworkers, intellectual workers, insurance workers, labourers or manual workers, liberal professions (such as doctors and lawyers), sales representatives, service workers, taxi drivers, as well as certain unspecified professions as may be contained in legal regulations.

Various categories of worker are specifically excluded, such as women working in fishing and trapping in the Northwest Territories of Canada, homeworkers, domestic workers, salespersons, workers not covered by collective bargaining agreements and part-time workers. Of these, the most significant groups are part-time workers, homeworkers and domestic workers.

Part-time workers

Women constitute a large percentage of the part-time labour force. Among OECD countries, women’s share in part-time employment in 1995 was 63 per cent in Greece, 69 per cent in Canada, 70 per cent in Japan, 74 per cent in Australia and 88 per cent in Belgium. Women engaged in part-time work represent 8 per cent of all employed women in Greece, 28 per cent in Canada, 35 per cent in Japan, 43 per cent in Australia and 30 per cent in Belgium.¹² The same year, 85 per cent of the net additional jobs taken by women in the European Union were part-time positions.¹³ While part-time workers are implicitly included in Convention No. 103 if they are employed within the covered sectors or occupations, the Part-Time Work Convention, 1994 (No. 175), specifically requires ratifying countries to ensure that part-time workers receive conditions equivalent to those of comparable full-time workers with regard to maternity protection, inter alia, it being understood that pecuniary entitlements may be determined in proportion to hours of work or earnings.

Part-time workers are usually included within the scope of maternity protection in national legislation. Sometimes the law specifically states that part-time workers are covered, as in Cd’Ivoire, Czech Republic, Cuba and Grenada. While part-time workers are seldom specifically excluded,¹⁴ they may have difficulty meeting the eligibility requirements for benefits, in the form of time-in-service requirements or minimum periods of contribution which may take the part-time worker much longer to fulfil than a full-time worker. For example, in Spain, a woman worker must work for 180 days to qualify for benefits. Because the days are counted as eight-hour days, a part-time worker will need to work for a greater number of days to meet the minimum threshold. In this way, a large number of women workers may fall outside of maternity protection.

Homeworkers

Changing enterprise structures and labour market conditions have led to an increase in home work over the past 20 years. Homeworkers are normally understood to be workers who produce goods or provide services for an employer in a place of the worker’s own choosing, usually the home. Surveys indicate there are high percentages of women among homeworkers, ranging from 90 to 95 per cent in Germany, Greece, Ireland, Italy, Japan and the Netherlands.¹⁵ One survey focusing upon the Australian clothing industry showed that 95 per cent of the homeworkers were women. In the developing countries, the percentages of women are also high. In India, almost 90 per cent, or close to 2 million, of bidi (cigarette) workers are women. In the Brazilian clothing industry, close to 90 per cent of the homeworkers are women. In Algeria, a 1991 survey indicated that 97 per cent of the homeworkers were women. The Home Work Convention, 1996 (No. 177), and the Home Work Recommendation, 1996 (No. 184), provide that equality of treatment between home-workers and other wage-earners shall be promoted in relation to maternity protection, inter alia.

Homeworkers are specifically covered by maternity protection laws in several countries, including Chile, Czech Republic, Dominican Republic, France, Guinea, Germany, Hungary and Iceland. In Austria and the Netherlands, the social security laws cover homeworkers whose earnings exceed a minimum level. However, homeworkers are specifically excluded in countries such as Argentina, Barbados, Philippines, Swaziland and Turkey. For the most part, national laws do not specifically address homeworkers, who fall within the scope of protection only if they are considered wage-earners or “employed” persons, rather than self-employed persons or independent contractors. Homeworkers’ advocacy groups allege that employers sometimes require homeworkers to work on a casual, rather than permanent, basis in order to avoid liability for social security payments.¹⁶

Domestic workers

Whether in industrialized or non-industrialized countries, a large portion of domestic workers are women. Some countries, such as Belgium, Dominican Republic, Ecuador, Fiji, Greece, Guinea, Honduras, Italy, Jamaica and Morocco, specifically include domestic workers within the coverage of maternity protection legislation. In some countries, such as Algeria and Sao Tome and Principe, domestic servants are covered, but under separate legislation. However, it is far more frequent for domestic workers to be specifically excluded from the scope of the law, as in Angola, Argentina, Cambodia, El Salvador, Egypt, Gambia, Ghana, Guinea-Bissau, Haiti, Japan, Jordan, Republic of Korea, Kuwait, Lebanon, Libyan Arab Jamahiriya, Nepal, Peru, Philippines, Saudi Arabia, Singapore, Solomon Islands, South Africa, Sudan, Swaziland, Syrian Arab Republic, Thailand, Turkey, United Arab Emirates and Yemen.

These exclusions sometimes affect a substantial numbers of women. In the Philippines, 766,200 workers, mostly female, were employed as domestic workers in 1995.¹⁷

Casual, contract and temporary workers

In recent years, there has been a rise in the number of women employed as casual workers, contract workers and temporary workers. For instance, in 1995 in the United Kingdom, 770,000 women, or 8 per cent of the female workforce, described their job as “not permanent”, involving, for example, employment on “fixed-period contracts”, “agency temping” or “casual work”.¹⁸ These categories - casual, contract and temporary workers - are sometimes included within the coverage of the law, as are contract workers in Belgium, and temporary and casual workers in the Dominican Republic. In Dominica, temporary workers are covered after two weeks of employment, and in Colombia, temporary and casual workers are covered after one month of employment.

Often, however, such workers are excluded from coverage. Casual workers are specifically excluded in such countries as Angola, Australia, Bahrain, Belize, Brazil, Guyana, Haiti, Kuwait, Saint Lucia, Solomon Islands, South Africa, Sri Lanka, Viet Nam, Yemen and Zaire and temporary workers are excluded in Bahrain and Kuwait. Even if these categories of employee are not specifically excluded, many will fall outside the scope of protection because they may not be able to satisfy the eligibility requirements based upon time-in-service or a minimum period of contributions to social security.

A move towards broader coverage

Despite the wide variety of ways in which scope is articulated within each country, this survey of the legislation indicates that the scope of women covered by the legislation in most countries approaches or exceeds that prescribed by Convention No. 103 and is moving towards broad coverage for all employed women. Women are generally covered across the industrial and non-industrial sectors and in both the public and private sectors. In addition, ILO member States are extending coverage for benefits to categories of workers who were once excluded. For example, domestic workers are now covered in Brazil, Jamaica and Portugal; agricultural workers in Argentina, Ecuador and Portugal; and part-time workers in the Cd’Ivoire, Singapore and Spain. Even women who are self-employed have been included within the scope of benefits in some countries, such as Finland, Luxembourg, Portugal, Spain and Sweden. Such extensions have a very positive impact upon the lives of women workers.

However, significant gaps still exist with respect to the agricultural sector, as well as the categories of workers analysed above, notably part-time workers, homeworkers, domestic workers, and casual, contract and temporary workers. While these gaps are lessening, much remains to be done to ensure that their legal protection becomes effective. The concern expressed by the International Labour Conference in its resolution on equal opportunities and equal treatment for men and women in employment remains relevant today:¹⁹ “Priority consideration should be given, as appropriate to national circumstances, to the gradual extension of maternity protection to women in all sectors of activity and enterprises of all sizes, including women who are casual, temporary, part-time, sub-contract and home-based workers as well as self-employed and family workers”.

Notes

¹ When Convention No. 3 was revised, the new Convention (No. 103) added the words “race or creed”.

² Convention No. 103 extends the scope that was first provided in Convention No. 3, which covered “public or private industrial or commercial undertakings, or in any branch thereof”, to include women employed in non-industrial occupations, agricultural occupations and home-workers.

³ The Plantations Convention, 1958 (No. 110), also contains maternity protection provisions, but its scope is limited to all plantation workers, which is a subset of the category agricultural workers found in Convention No. 103.

⁴ Convention No. 3 contains a similar exemption with a slightly different wording: countries may exempt “undertakings in which only members of the same family are employed”.

⁵ Of the 34 countries that have ratified Convention No. 103, only four have made a declaration excepting these categories: Austria (domestic work), Brazil (agricultural and domestic work), the Netherlands (agricultural and domestic work), and Spain (undertakings engaged in the transport of passengers by sea).

⁶ ILO: Report of the Committee of Experts on the Application of Conventions and Recommendations, Report III(4), International Labour Conference, 49th Session (Geneva, 1965), para. 65, p. 197.

⁷ The possibility of entitlement to maternity leave without entitlement to cash benefits is well-illustrated by the differing provisions defining scope in Convention No. 103 and Convention No. 102 concerning minimum standards of social security.

Convention No. 103 covers women employed in whole sectors and whole classes of occupations. Convention No. 102, on the other hand, describes the persons protected in terms of minimum percentages of three prescribed classes: (1) not less than 50 per cent of prescribed classes of employees; (2) by prescribed classes of the economically active population constituting not less than 20 per cent of all residents; and (3) not less than 50 per cent of prescribed classes of residents. For countries with insufficiently developed economies that choose to apply the Convention progressively, women who fall into prescribed classes of employees constituting not less than 50 per cent of all employees in industrial workplaces employing at least 20 employees are covered. Whereas the spouses of covered employees are eligible for benefits, employed women falling outside the percentage of the workforce in the prescribed class would fail to qualify for benefits.

⁸ This applies, for example, to teachers in Trinidad and Tobago.

⁹ United Nations: The world’s women 1995.-Trends and statistics (New York, 1995), pp. 141-145.

¹⁰ C. Callender, N. Millward, S. Lissenburgh and J. Forth: Maternity rights and benefits in Britain, 1996 (London, Policy Studies Institute, 1997).

¹¹ The equality of opportunity and treatment for workers and family responsibilities, unpublished report prepared for the ILO (Bangkok, 1997).

¹² OECD: “OECD in figures: Statistics on the member countries, 1997 edition”, in OECD Observer, No. 206, Supplement (Paris, June-July 1997), pp. 10-11.

¹³ European Commission: Employment in Europe (Brussels, 1996), p. 53.

¹⁴ Examples of countries in which part-time workers are specifically excluded are Belize (if they work less than eight hours per week), Dominica (if they work less than 21 hours per week), South Africa, and Trinidad and Tobago (less than ten hours per week).

¹⁵ ILO: Home work. Report V(1), International Labour Conference, 82nd Session 1995 (Geneva, 1995).

¹⁶ See, e.g., European Homeworking Group: “Portugal: Hidden hands”, in Homeworkers in Europe (Leeds, Summer 1997), pp. 6-7.

¹⁷ M. A. Abrera-Mangahas: “General situation of child domestic workers in the Philippines”, in ILO-IPEC: Consultation proceedings: Final report. National NGO Consultation on Child Domestic Workers in the Philippines, 2-4 August 1996 (Quezon City, Philippines).

¹⁸ F. Sly: “Women in the labour market: Results from the spring 1995 Labour Force Survey”, in Labour market trends (London, March 1996), p. 94.

¹⁹ Resolution on equal opportunities and equal treatment for men and women in employment, adopted by the International Labour Conference at its 71st Session, Geneva, 1985.