Law & Practice Around the World
A Summary of ILO Policy Brief-2014
The policy brief compares National laws of 185 countries with most recent ILO standards. It covers maternity leave, paternity leave, and parental leave, health protection at work, employment protection, nondiscrimination and child care.
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- Majority of the countries now provide leave duration in line with the ILO convention C-183.Since 1994 no country has reduced the maternity leave.
- Although more than 100 countries now finance statutory cash benefits during maternity leave via social security, reducing employers’ liability, yet in more than HALF countries, these benefits were insufficiently long lasting and financially inadequate.
- Expanding coverage in law and in practice is critical for the apx 830 million women workers mainly in developing countries, who are not adequately covered in practice.
- In the recent years there has been a gradual positive shift in the duration of maternity leave.The most recent standard on duration of maternity leave mandates a minimum of 14 weeks,(C-183) up from 12 weeks in the previous conventions. Recommendation No.191 encourages ILO member states to increase the period of maternity leave to “at least 18 weeks”.
- The longest average statutory durations of maternity leave are in Eastern Europe and Central Asia (almost 27 weeks) and the developed economies (21 weeks). The shortest regional average is in the Middle East (9.2 weeks).
- Among the 185 countries and territories studied;
- 98 countries meet the ILO standard of at least 14 weeks’ leave.
- 42 of those countries meet or exceed the suggested 18 weeks’ leave.
- 60 countries provide 12 to 13 weeks’ leave (< than C-183 but = to older conventions)
- Only 27 countries provide less than 12 weeks.
Since according to ILO convention C-183, the cash benefits paid during maternity leave should be at least 2/3rd of a woman’s previous earnigs for a minimum of 14 weeks. The findings from a subset of 167 comparable countries are as below;
74 countries (45%) provide cash benefits of at least 2/3rd of earnings for at least 14 weeks. An overall increase of 3% since the last ILO review in 2010.
- Among these, 61 countries provide 100% of previous earnings for at least 14 weeks.
- In 93 countries (55%) the maternity leave is unpaid, paid at less than 2/3rd of previous earnings, or paid for a period less than 14 weeks.
The most common types of funding for maternity leave cash benefits are employment-related social insurance(contributory scheme), the employer as direct payment to the employee (employer liability). Out of 185 countries & territories surveyed here are the findings;
- 107 countries (58%) provide cash benefits through national social security schemes.
- In 47 countries (25%) benefits are provided solely by the employer
- In 29 countries (16%) benefits are shared between employers and national social security systems.
- In 2 countries (1%) benefits are not paid at all.
Research showed that
- Employer liability schemes work against the interests of women by placing the financial burden on employers and creating a possible source of discrimination against women.
- Trend data showed that since 1994 the percentage of countries that finance cash benefits through employer liability systems fell from 33 to 26%. While those that provide unpaid leave dropped from 5 to 1%.
- The priority of ILO technical assistance is to support member states to shift progressively from employer liability to social security systems.
There is a a distinction between how many workers are covered by maternity protection in law and how many actually benefit in practice.
- Almost 80% of the 830 million women in workers unprotected are in Africa & Asia. These are the regions where employer liability schemes are more prevalent, informal work is predominant and maternal and child mortality rates are still very high.
- Only around 330 million women (28.4% of employed women world wide) are effectively protected. That means, they would receive cash benefits in the event of child birth.
- Among these women workers, 38% are in Developed Economies.
- In only 21 countries—mostly in Europe—more than 90% of employed women would be entitled to have some form of financial support for having a child.
- Many countries specify the categories of workers not covered by maternity leave; these include :
- Self employed
- Doemstic workers
- Agricultural workers
- Non-standard workers(part time etc)
- Women in SME’s
- Migrant workers
There have been positive changes;
- In at least 45 countries domestic workers are covered by maternity leave at par with the local workers, in line with the article#14 of ILO’s Domestic workers Convention, 2011 (No. 189).
- However, given the substantial numbers of women in the informal or non standard employment, lack of access to maternity protections remains a very serious concern.
- ILO considers that access to social security is a fundamental human right and a public responsibility.
- ILO research suggests a minimum package of social security benefits is not only affordable and feasible in even the poorest economies, but is conducive to social and economic development.
- Paternity leave provisions are becoming more common and reflect evolving views of fatherhood. A statutory right to paid paternity leave is found in 78 of the 167 countries.
- According to ILO study, Parental leave provisions were found in 66 of the 169 countries, predominantly in the Developed Economies.
- Parental leave is typically offered as a shared entitlement, mainly taken by women as compared to men.
Paternity Leave: Towards more fathers’ Involvement
Paternity leave is usually a shorter period of leave for the father to take immediately following the childbirth to help care for the child and assist the mother.
Research suggests that fathers who take paternity leave, especially two weeks or more immediately after childbirth are more likely to be involved with their young children.
- No ILO standard exists concerning paternity leave. However the resolution concerning Gender Equality at the heart of “decent work” adopted by Intl. Labor Conference 2009,recognizes that work-family reconciliation measures concern both men & women.
- The resolution calls for states to develop adequate policies for a better balance of work and family responsibilities, to include paternity and/or parental leave, with incentives for men to use them.
- Leave provisions for fathers are most common in Developed Economies, Africa, Eastern Europe and Central Asia.
- Leave duration longer than two weeks are offered in only five countries (Finland,Iceland, Lithuania, Portugal & Slovenia)
- Only three countries (Chile, Portugal& Italy) make it compulsory for fathers to take up the leave, while the rest offer obligatory.
- In 1994 statutory paternity leave provisions existed in 40 of the 141 countries for which the data were available at ILO.
- By 2013, legislation on paternity leave existed in 78 countries of the total 167 countries, with available information. The regions with the largest increase are in provisions are Eastern Europe and Central Asia, the Developed Economies and Latin America & the Caribbean.
- Paternity leave is paid in 70 countries (89%)
- Risk pooling through social insurance or public funds can boost fathers’ take-up rates.
Parental Leave: A difficult balancing act
Parental leave is a period of longer-term leave available to either or both parents, to take care of their infant or young child, usually after maternity or paternity leave expires.
Provisions on parental leave are contained in R-191 (accompanying C-183) and R-165 ( accompanying C-156). Both leave duration,payment & other aspects to be determined at national level.
There is considerable variations in systems of parental leave. Broadly, parental leave is longer than maternity leave, but payment is often lower or non-existent.
- Parental leave provisions were found in 66 out of the 169 countries.
- Nearly all Developed economies offer a period of parental leave. More than half of these countries provide paid leave.
- In Africa most of the countries offer unpaid parental leave
- In the Middle East most of the countries offer unpaid parental leave, only for mothers
- 3 of 25 Asian countries offer parental leave
- 2 out of 31 Latin American countries provide parental leave
- Most of the paid leave is usually funded by social security systems, and general taxations.
- In general, women are more likely to take parental leave following maternity leave (in shared entitlements)
- This trend can weaken the women’s footing in the labor market and further enhance gender inequalities at work place and in the division of labor at home
- Overall, evidence suggests that workers prefer better-paid leave for both women and men during shorter periods, followed by family friendly working arrangements and quality, affordable childcare services rather than extended leave periods with little compensation.
- Despite the global economic crisis beginning in 2008, many countries actually increased support to families. Measures included access to early education, tax credits, increase in duration, scope & levels of benefits for maternity/parental leave
- There were positive developments in paternity and parental leave schemes intended to increase men’s take-up rates.
Employment Protection & Non Discrimination: Challenges Persist
Information from the court cases, trade unions and other sources indicated that discrimination is a continuing problem throughout the world.
- The guaranteed right to return to work: Out of 146 countries with available information, majority (82) do not guarantee the right to return to work.
- C-183 also calls for Protection during a period following a woman’s return to work after maternity leave: At least 56 countries specifed the time period covered by this protection.
- Burden of Proof: As per C-183 it rests on the employer to prove that dismissals were not on the basis of maternity situation. Out of 144 countries, 54 countries (38%)have legal provisions to place the burden of proof on the employer.86 countries (60%) do not specify a burden of proof & the remaining countries place it on the worker!
- Non-discrimination in relation to maternity: Convention No. 156 extends protection to workers with family responsibilities. Out of 155 countries , 114 had legislation prohibiting discrimination in employment.
- Convention No. 183 specifically prohibits requiring women to take pregnancy tests at the time for employment, with a few exceptions related to work based risks to health. Out of 141 countries 47 set out explicit provisions banning pregnancy tests. ILO calls for bans on pregnancy tests to be clearly established in national law & practice.
ILO standards set out broad frameworks for a preventive occupational safety and health culture.
- Arrangement of Working Time as a means for health protection for pregnant or nursing mothers is important.
- Night work: R-191 states that a woman should not be obliged to perform night work if incompatible with her pregnancy or nursing. Among 151 countries, 49 specify no restrictions on night work, 20 do not prohibit night work (but pregnant or all women are not obliged to work), 81 countries do prohibit night work by law.
- Overtime: There is no provision in R-191 concerning overtime. But some countries forbid it for pregnant (& sometimes nursing) mothers to work overtime.
- Time off for Prenatal Healthcare: is vital for detecting and preventing any medical complications during pregnancy and to help pregnant women to know their HIV status. This entitlement is not widely provided for despite WHO recommendations of 4 prenatal visits. It is uncommon in Africa,Asia & Latin America and non-existent in the Middle East.
- Provisons on hazardous or unhealthy work: Both C-183 & R-191 set out rights for pregnant or nursing women not to be obliged to work under hazardous conditions.Out of 160 countries 111 have statutory measures on dangerous or unhealthy work affecting pregnant or nursing mothers. 78 set out explicit prohibitions against such work.
- Blanket Bans: However ILO committee (CEACR) warns ratifying countries against blanket bans on dangerous, night work and on overtime. Such bans are contrary to the principle of equality of opportunity and treatment in employment and contribute to gender based discrimination at work.
- Protective Measures: R-191 suggests that protective measures should be taken when a workplace risk is established. Out of 160 countries with data available, 84 provided some sort of alternative to dangerous work while 76 did not.
After childbirth, without workplace support for breastfeeding, working is incompatible with breastfeeding.
- Nursing Breaks: have been part of International standards on maternity protection since 1919. Out of 160 countries 121 (75%) of the countries provide paid or unpaid daily breaks for nursing. Yet 39 do not have provisions for BF breaks. Almost 75 of the countries allow duration of paid nursing break entitlement between 6 months to 23 months.
- Hygienic Facilities: R-191 suggests provision of clean and hygienic facilities for nursing at workplace. Only 50 out of 159 countries had national legislation on it.
- Funding for Nursing & Day Care: Earlier MP conventions suggested funding from the community or social insurance. But in practice, national provisions put the entire cost on the employers- thus again creating dis-incentives for hiring workers with family responsibilities. In 2013 Argentina adopted a law to promote breastfeeding that all maternity benefits be publicly funded.
- Workplace initiatives alongwith public policies are needed to support women’s return to work after maternity leave.
What works for maternity and paternity at work
- Adopt and implement inclusive laws and policies for effective protection
- Prevent and eliminate discrimination against women and men with family responsibility
- Design maternity protection and work-family policies to achieve effective gender equality
- Address maternity, paternity and care as collective responsibilities
- Make maternity and unpaid care work key components of social protection programmes
- Promote equal sharing of family responsibilities between parents
- Create a supportive workplace culture
- Establish preventive health and safety culture at work