Maternity protection and benefits

While many of the issues raised for gender equality bargaining are new to the bargaining agenda, maternity protection and benefits have generally had a more established history: they have featured in legislation and in collective agreements in many countries for many years. The degree of these rights, however, differs from country to country.

Collective agreements sometimes refer to statutory rights or the text of the law is reproduced in the agreement. Although most countries provide for a minimum level of maternity protection under the law, there are still some countries where there is no legal protection, making collective agreements often the only source of rights. usually, collective agreements are used to improve upon the. protection and benefits provided by law.

Maternity protection and benefits should be viewed as a package including

The importance of maternity protection and benefits is underscored in international instruments such as ILO Conventions on maternity protection: the Maternity Protection (Revised) Convention, 1952 (No. 103); the Maternity Protection Convention, 1919 (No.3). The issue of maternity protection was on the agenda of the first International Labour Conference of the International Labour Organization in 1919.

I. Maternity leave

Adequate maternity leave is important to ensure that women have sufficient time off work to let the body recover, to adapt emotionally to the changes resulting from childbirth and to properly nurture their children. Rest before the birth is key to ensuring that the foetus can fully develop and be born mature. Babies with low birth weight or premature babies have a high mortality rate and tend to get sick more often.

Breast-feeding is important for the growth of the child and the development of an adequate immune system and is another reason for maternity leave. The World Health Organization (WHO) recommends four months' exclusive breast-feeding for all newly born babies, before introducing any other form of food. Ideally this would be enabled through a four-month period of postnatal maternity leave. A minimum of 12 weeks' maternity leave is required under the Maternity Protection (Revised) Convention, I 952 (No. 103). The Maternity Protection Recommendation, 1952 (No.95) suggests extending the period to 14 weeks.

Maternity leave prior to birth allows the mother to rest during the latter stages of pregnancy when she might otherwise be too uncomfortable to work, though this will vary from woman to woman; as a result, Convention No. 103 advocates a flexible approach to the duration of maternity leave prior to the birth.

Legislation in some countries pro vides for inadequate maternity leave. For example, in Kenya, a woman employee is entitled to two months' maternity leave provided she forfeits her annual leave for the same year. Collective agreements have been an important means of improving this situation. Collective agreements can also contribute to enforcing the payment of benefits when they are required to be provided by the employer.

Mothers returning to work too early are likely to become ill themselves; their children also run a higher risk of becoming ill. This costs the employer in terms of time off work and in reduced productivity. If not checked, it can cost the individual worker, the enterprise or the country spending in curative health care. If, on the other hand, precautions are taken to ensure that all children have ample time to develop their natural immune systems, then individuals, companies and nations would save on health care, and workers would be healthier and more productive.

Legislation must be followed concerning maternity leave, but unions can negotiate for extended periods of maternity leave to ensure that the needs of mother and child are met.

During a strike in 1983, the South African Commercial, Catering and Allied Workers Union (SACCAWU) negotiated with OK Bazaars for protection of women workers in the form of a maternity agreement. The union used this agreement as a model for agreements with other employers such as CNA and Woolworths. These agreements protected women from losing their jobs when they became pregnant. Women were guaranteed their jobs back when they returned from 12 months' maternity leave.1

1 Extracted from: Sharing the load. The struggle for gender equality, parental rights and child care (Johannesburg, 1991).

Maternity is not an illness and there fore maternity leave should be clearly distinguished from sick leave. Generally more favorable conditions apply to maternity leave such as cash benefits and benefits in kind.

Any illness related to maternity war rants additional leave, as well as in the case of multiple births and exceptional deliveries such as caesarean delivery, etc.

Unions can also bargain to ensure that maternity leave is available to all categories of female employees. The legislation in some countries, for example, provides that women must work a certain number of hours per week in order to be entitled to maternity leave under law. Many women working part time are not eligible as a result. Collective bargaining then becomes an essential vehicle for ensuring that these women benefit from maternity leave.

Where it is not practical or possible to agree to a period of maternity leave of four months after the birth, the provision of day-care centers, crèches, nursing rooms, etc. on or near the workplace, or community based, could assist mothers to breast-feed for the recommended four-month period. These facilities are of equal benefit to all employees in need of child-care services during the working day.

See also the section on leave in booklet 2, working conditions.

2. Maternity cash benefits

In most countries where social security systems are developed, maternity cash benefits are paid by the State. In others, the employer pays for maternity leave or supplements state-pro vided maternity benefits. Unions need to address this issue in consultation with their women representatives.

Unions can negotiate to ensure that maternity cash benefits are at a high enough level to sustain the mother's income during her leave. Where state payments are less than a woman's salary, unions can persuade employers to supplement them.

The National Union of Shop and Distributive Employees in Nigeria has negotiated agreements with employers to ensure that its members have three months' maternity leave on full pay and one hour's leave every day for the three months after returning to work from maternity leave.1 This is a significant improvement on the statutory provision of 12 weeks on half pay.2

1Report to the FIET Regional Women's Seminar for English-Speaking Africa, Nov.1991.

2 Labour Decree 1974, Decree No.21, cited in the ILO Conditions of Work Digest, vol.13,1994, Maternity and Work.

Maternity benefits or reproduction responsibilities need to be considered a social responsibility in any country. Every society has the responsibility of ensuring the care of children once they are born because they are the resources of the country for future development. Both the needs of the mother and the child must be taken into consideration by the union at all stages of bargaining.

3. Miscarriage and stillbirth

Stillbirth is the term used for a fetal death in late pregnancy; miscarriage is the term used for fetal death in earlier pregnancy. The point in pregnancy at which a miscarriage becomes a stillbirth is determined by the laws and policies of each State. There are no World Health Organization definitions for these terms.

In a number of countries stillbirth is considered as birth, therefore, entitling the woman to the same benefits as a live birth. This is not the case for miscarriage.

Unions should ensure that appropriate leave and health care is available for both miscarriage and stillbirth, especially considering the emotional stress suffered by the woman and the family members in such circum stances.

4. Adoption

A period of leave should be negotiated by the union to ensure that the adopted child and family have an adequate opportunity to adapt to each other. The period could be similar to that provided by law for postnatal maternity leave. Of course all the benefits negotiated regarding family responsibilities should be available to parents of adopted children.

5. Reproductive health care

This can include routine examinations as well as advice concerning reproductive health and contraception. Specific measures may include breast screening, pap smears and testing for sexually transmitted diseases, including HIV and AIDS.

Unions can negotiate for appropriate prenatal and postnatal care to ensure the well-being and health of the mother and child.

Paid time off should be negotiated for these check-ups and any treatments.

Workers should be able to use reproductive health-care services voluntarily and should be able to have confidentiality ensured.

6. Rights of pregnant and nursing women

Unions can use collective bargaining to ensure that pregnant and nursing women are able to continue to work and to cope with their pregnancy and meet their family responsibilities.

In particular, unions can bargain to ensure and maximize employees' rights to 

· flexible working hours to avoid traveling during peak hours - this protects pregnant women from the fatigue and physical stress associated with rush hour traffic, particularly when public transport is inadequate

· shorter working hours

· additional rest breaks

· lighter work - pregnant women and nursing mothers should be permitted to avoid heavy physical work which may endanger the pregnancy, and to choose alter native positions such as being able to sit comfortably rather than standing all day, or alternate between sitting and standing

· move from night work to day work

· safe work - working with toxic materials and chemicals can be harmful and may damage an unborn child; lifting heavy weights and working with vibra ting machines should also be avoided

· nursing breaks - nursing breaks should be frequent enough and long enough to enable mothers to continue to breast-feed their children. Provision can be made for the mother to have the option of combining the breaks so that a longer break can be taken at the beginning or end of the day. Breaks should be treated as paid working time. Provision of crèche facilities or a room for breast- feeding on or near the workplace reduces the time needed for nursing breaks. A room for expressing breast milk could be provided, with breast pumps made available.

7. Job security

Bargaining can be used to ensure that maternity does not result in reduced lob security. In particular unions can negotiate for

· the right to return to the same or a similar lob after maternity leave - this should include cases of negotiated parental leave and extended leave

· no interruption in seniority during leave

· no loss of annual or sick leave

· option to return to part-time work at woman's request

· right to return to full-time work after a period of part-time work

· no victimization or loss of lob due to pregnancy

· reassignment to non-hazardous tasks

· special protection for pregnant women working on a fixed-term contract. Non-renewal of contract for a lob of a continuous nature should be considered as dismissal and hence be prohibited

· prohibition of pregnancy testing for recruitment or while on the lob.

It is important that there is a clear policy on non-discrimination for reasons related to pregnancy and that measures are in place to protect pregnant women

See the Discrimination (Employment and Occupation) Convention, 1958 (No. III) and Recommendation (No. 111); the Termination of Employment Convention, 1982 (No. 158) and Recommendation (No. 166); and the Maternity Protection (Revised) Convention, 1 952 (No. 103) and Recommendation (No.95).

Checklist: In negotiating for their members, unions should ensure that

 

Family responsibilities

Changing demographic and economic patterns in the world have created new situations in the labour mar ket and in family life.

Increasingly women are working in paid employment which can result in conflict between the demands of family and work.

In many cases women entering for mal employment are not relieved of their traditional role of assuming total or major responsibility for the care of children and other family members, domestic chores, and sometimes working in family undertakings. They assume employment responsibilities in addition to their domestic responsibilities. This dual burden is acutely felt in many countries where domes tic roles are perceived as entirely feminine yet the need for cash income is forcing more and more women to seek paid employment.

Women are often the heads of house holds due to labour migration and other economic and social factors. In this situation women bear the sole responsibility for running the home and for income-generation.

The migration of young families to the cities to earn a livelihood has resulted in their separation from members of the extended family. Whereas in traditional communities care of young children was left to the older or retired women, this is seldom possible in the current nuclear family arrangement. In this reorganization of family responsibilities, it is obvious that the male parent has, or should have, much more to do to ensure the health and well-being of the family.

The integration of domestic responsibilities and working life can be a problem for both sexes. Workers' needs at the workplace, therefore, include arrangements to enable these family responsibilities to be combined more harmoniously with their responsibilities at the workplace.

The ILO has incorporated these needs and issues which affect employment in the Workers with Family Responsibilities Convention, 1 981 (No. 156) and its accompanying Recommendation (No.165).

Trade unions through representation of their members have come to realize that more women are joining the labour market. To fulfill the realization of women's potential in development, the balance between work and household responsibilities needs to be addressed as a key issue that goes beyond the boundaries of the work place and is broader than women's issues.

The union can address these issues through collective bargaining, particularly by negotiating clauses on:

· paternity leave

· parental leave

· family leave

· family care services

· protection against discrimination and victimization.

See also booklet 2, working conditions.

I. Paternity leave

A male worker whose spouse/partner has a baby requires time off from work to attend to the pressing family needs surrounding birth. This might entail taking the woman to and from the hospital, attending to other children during her absence, organizing payment of hospital bills and giving emotional support to the new mother. The working father needs leave to deal with all these issues. The union can negotiate for paternity leave (per haps one to two weeks).

Paternity leave can be negotiated not just in the event of birth but also to cover the adoption of a child. Leave might also be given in the case of miscarriage or a stillbirth.

It is important that the rate of pay for such leave is considered. Rather than calculating paid leave on the basis of basic pay, average earnings (including average overtime pay) could be used.

Paternity leave is particularly important because of arrangements which must be made by the father and in relation to the needs of the mother and new baby.

The National Union of Plantation and Agricultural Workers (Uganda) and the Uganda Tea Association reached a collective agreement in May 1993 which pro vided for paid paternity leave of four working days for a male employee to assist his wife during and after delivery.1

1Information Contained in a Memorandum of Agreement between the Uganda Tea Association and the National Union of Plantation and Agricultural Workers (Uganda).

Legislation

 

Collective agreement

No paternity leave

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Paternity leave

Short paternity leave

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Longer paternity leave

Unpaid paternity leave

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Paid paternity leave

Basic wage paid during paternity leave

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Average wage paid during paternity leave

2. Parental leave

Following the period of maternity leave when the mother is to return to work, the baby still needs special care. The woman worker also has responsibilities relating to her job and career. Although there may be a day- care centre, parental attention is vital, particularly for the child's emotional development.

Most parent-child emotional attachments are developed in the early stages of human life. For this reason, trade unions assist families of workers by negotiating parental leave once the standard maternity leave has come to an end.

The union can negotiate parental leave which can be taken by either parent after the standard maternity leave has expired, and is available until the child reaches a certain age. The union can negotiate to ensure that the parent will return to work in the same or an equivalent post without loss of seniority or benefits. This should also be negotiated in the case of adoption of a child.

Parental leave could be granted with or without pay, with partial pay or a combination of these depending on the duration of leave sought by the parent.

British Columbia Buildings Corporation, and British Columbia Government and Service Employees' Union (NUPGE) negotiated a collective agreement effective from November 1994 to April 1997 containing the following new provision for extended child-care leave:

An employee may request a maternity, adoption and/or parental leave extension without pay to care for a child, providing the combined length of leave does not exceed 18 months. Upon return to work, the employee will be placed in their former position or in a position of equal rank and pay.1

1Agreement cited in Collective Bargaining Review, Human Resources Development Canada, Sep. 19g5.

3, Family leave

The extended family is no longer the rule in many cultures. As a result, the worker may need to take time off to stay at home with a sick child, take a family member to the doctor, hospital, dentist, for other special treatment or reasons. This is particularly important for small children, elderly persons or those infirmed or disabled who depend on the worker for their care. The union should negotiate for paid time off and ensure that taking such leave in no way hinders upward mobility.

The Canadian Union of Public Employees, Local 500 (5,500 inside and outside employees) negotiated an agreement with the City of Winnipeg effective from 25 December 1994 which contains the following new provision for leave in the case of illness in the family.

Employees will be allowed to utilize a maximum of 3 days per year of accumulated sick leave credits for providing care for a spouse or a dependent child who is ill. This clause is also applicable for providing care for parents, parents-in-law, and children of a registered common law spouse.1

1Agreement cited in the Collective Bargaining Review Human Resources Development Canada, Mat 1995

4. Family care services

Unions should survey their members to determine what their needs are and what community services are available to meet those needs before embarking on negotiations. This will help to ensure that the real needs are identified and met. The union should consider which needs might best be met through collective agreements with the employer and which might be met by negotiation with the local authority or the State.

Community services such as child care, care for the elderly or reproductive health care are often expensive and inaccessible to workers, even when absolutely necessary to guarantee their productive work. Even where services such as child care are affordable, there may be an inadequate number of places. Easy access to such services would ease the bur dens on workers and improve their efficiency at the workplace as well as in their private lives.

1) Child care

Child care is a major concern to many workers: there may be no facilities available, existing facilities may be too expensive or the day-care center hours may be inflexible. Difficulties arise not only for those parents of young children, but also with school- age children, since school timetables and holidays are often difficult to coordinate with the average work schedule.

The union can negotiate for various options to solve these child-care problems:

· day care

· crèche

· after-school care

· child-care allowances

· holiday play scheme

· child-care information services.

Allocations or facilities may be provided by the employer, State or in some cases co-sponsored by unions and employers. The employer might pro vide the place and facilities, the State might provide attendants or teachers, the union might provide attendants and/or advisory services, and the user might be charged reasonable fees. Unions should insist that they have an advisory role to ensure that such facilities meet the needs of their members and the necessary quality of care.

II) Care of the elderly

More and more workers are having to deal with caring for the elderly since most adult members have jobs and work responsibilities and people in general are living longer. This issue must be recognized and provided for in family leave provisions and in some cases in more extensive programmes negotiated by the union.

The benefits negotiated might include:

· flexible working hours for careers

· paid leave to care for the elderly

· respite care services

· life insurance

· long-term care insurance

· medical expenses

· group insurance

· work/family stress management services.

Service programmes might be pro vided directly under union auspices or through employer-facilitated arrangements (visiting older relatives, providing assistance with personal care, handling legal problems and decisions, giving assistance with shopping and errands, transport, services).

The United Nations' Vienna International Plan of Action on Ageing states:

The family, regardless of form or organization, is recognized as a fundamental unit of society. With increasing longevity, four- and five-generation families are becoming common throughout me world. The changes in the status of women, however; have reduced their traditional role as caretakers of older family members; it is necessary to enable the family as a whole, including its male members, to take over and share The burden of help in and by The family. women are entering and remaining in the labour force for longer periods of time. Many who have completed Their child-rearing roles become caught between The desire and need to work and earn income and the responsibility of caring for elderly parents or grandparents.1

In 1992, the General Assembly adopted a set of Global Targets on Ageing for the Year 2001. The guide for implementation,2 underlines regarding the goals for "family targets", the need to

Promote, enhance and support family care-giving: this will include, among others, information and training on care- giving, housing and rental subsidies for multi-generational families, provision for respite care, remuneration for unpaid long-term care-giving and consideration of time spent on care-giving for pension-scheme calculations.

1Recommendation No.24, adopted in 1982 by the World Assembly of Ateine.

2 UN Document A/47/339.

III) Reproductive health services

Reproductive health concerns are of immediate priority to the worker and his or her family. The union can negotiate

· access to family planning

· check-ups on a regular basis, particularly for the mother and child

· access to information on HIV and AIDS, including appropriate protective measures.

See also booklet 2, working conditions.

 

5 Protection against discrimination or victimization due to family responsibilities

It is important that employees who take family-based leave or receive family-related benefits are not penalized. Unions need to ensure that these employees are not restricted in promotion or access to further training and that they are eligible for the same wages and other benefits as their fellow employees.

It is vital to ensure job security for employees with family responsibilities.

The Termination of Employment Convention, 1982 (No. I 58) advocates protection against dismissal on the grounds of family responsibilities (Article 5(d)) and it is supported by Recommendation No.1 66.

See the Workers with Family Responsibilities Convention, 1981 (No. I 56) and Recommendation (No.165).

See also booklet 5, Dignity at the workplace.