Part B: International Context
CHAPTER 3: International obligations
3.1 Introduction
3.2 Paid maternity leave in international instruments
CHAPTER 4: International comparisons
4.1 Introduction
4.2 Social security and social insurance schemes
4.3 Employer funded
4.4 Combination of employer and social security
4.5 Parental or family leave
CHAPTER 3: International obligations
3.1 Introduction
A number of international instruments recognise paid maternity leave as a work related entitlement for women. Paid maternity leave, in these instruments, is one of a series of measures that states parties are encouraged to take to redress discrimination against women and support them in their mothering role.
Acceptance of these international standards is demonstrated by the widespread provision of and support for paid maternity leave internationally, as set out in Chapter 4.
3.2 Paid maternity leave in international instruments
Paid maternity leave is included in CEDAW and ILO 183 as a specific measure that fulfils state obligations to provide women with equal employment rights.
3.2.1 CEDAW
The right of all women to work is one of the central rights expressed in CEDAW. CEDAW also states, in relation to women's work, that women should not be discriminated against on the ground of maternity. [71] As a means of fulfilling these rights, CEDAW specifies the measures that states parties should take to achieve these rights.
Paid maternity leave is explicitly included as a measure which is required to be introduced by states parties.
Article 11
2 In order to prevent discrimination against women on the grounds of marriage or maternity and to ensure their effective right to work, States Parties shall take appropriate measures:
…
(b) To introduce maternity leave with pay or with comparable social benefits without loss of former employment, seniority or social allowances; …
The provision of paid maternity leave was regarded by the CEDAW working party as being an appropriate measure to support motherhood through the assumption by society of a share of the costs of raising a child. [72] The working party identified paid maternity leave as one of a number of measures which enable 'women to combine the fulfilment of family and maternal obligations with activity in the labour force'. [73] In CEDAW the provision of paid maternity leave is seen as distinct from the general provision of assistance to parents who want to combine work and family responsibilities. [74] Paid maternity leave is a measure which specifically addresses the child-bearing role of women.
In discussing the implementation of measures such as paid maternity leave, the working party acknowledged the need to limit, as much as possible, measures which discourage employers from hiring women. [75] No reference was therefore made concerning who should bear the costs of paid maternity leave, or how these costs should be calculated.
Of CEDAW's 163 signatories, 158 provide paid maternity leave. The five nations that are signatories, but do not provide paid maternity leave are Australia, Lesotho, New Zealand, Papua New Guinea, Swaziland and the United States of America. New Zealand recently announced that it would introduce paid parental leave from 1 July 2002.
3.2.2 Australia's Response to CEDAW
Australia is a signatory to CEDAW. Australia enacted the Sex Discrimination Act 1984 (Cth) to give effect to certain provisions in CEDAW. In particular, the Sex Discrimination Act prohibits discrimination on the grounds of sex, marital status, pregnancy or potential pregnancy; dismissal on the basis of family responsibilities; sexual harassment; and promotes the principle of equality between men and women.
When Australia ratified CEDAW on 28 July 1983, it did so with the specific exclusion of Article 11(2)(b), the provision concerning paid maternity leave. Australia entered the following reservation. [76]
The Government of Australia states that maternity leave with pay is provided in respect of most women employed by the Commonwealth Government and the Governments of New South Wales and Victoria. Unpaid maternity leave is provided in respect of all other women employed in the State of New South Wales and elsewhere to women employed under Federal and some State industrial awards. Social Security benefits subject to income tests are available to women who are sole parents.
The Government of Australia advises that it is not at present in a position to take the measures required by article 11 (2) to introduce maternity leave with pay or with comparable social benefits throughout Australia.
In 1999, HREOC's Pregnant and Productive Report recommended that the Federal Government remove its current reservation to Article 11 (2)(b). [77]
The Government responded to this recommendation stating that
Australia lodged a reservation to Article 11(2)(b) in 1983. That Article asks Member States "to introduce maternity leave with pay or with comparable social benefits without loss of former employment, seniority or social allowances".
Since that time, there have been significant changes to workplace relations legislative provisions and income support arrangements. The Workplace Relations Act 1996 provides for up to 52 weeks of parental leave after 12 months continuous service. Maternity Allowance provides a means-tested lump sum payment to assist families with the additional costs incurred at the time of birth of a baby. The maternity payment has been designed to take into account income foregone while not participating in the paid workforce around the time of the birth of a child.
The removal of a reservation to any international treaty is subject to Australia's domestic treaties process. This requires extensive consultation with State and Territory governments and the community, and the agreement of both Houses of the Commonwealth Parliament. [78]
This process is yet to be initiated and Australia's reservation to CEDAW remains in place.
3.2.3 ILO 183
In June 2000 the International Labour Organisation (ILO) adopted a new Maternity Protection Convention (ILO 183) and Recommendation (Recommendation 191). [79] The Convention replaces the 1952 Maternity Protection Convention 103.
ILO 183 applies to all employed women [80] and provides for a minimum of 14 weeks maternity leave. [81] Recommendation 191 encourages states parties to extend the period of leave to 18 weeks. [82]
Article 6 of ILO 183 sets out the cash benefits that should be paid to women on maternity leave, [83] or who experience illness or complications in relation to their pregnancy. [84] Article 6 sets out minimum standards for maternity benefits in the following terms.
Article 6
1. Cash benefits shall be provided, in accordance with national laws and regulations, or in any other manner consistent with national practice, to women who are absent from work on leave referred to in Articles 4 or 5.2. Cash benefits shall be at a level which ensures that the woman can maintain herself and her child in proper conditions of health and with a suitable standard of living.
3. Where, under national law or practice, cash benefits paid with respect to leave referred to in Article 4 are based on previous earnings, the amount of such benefits shall not be less than two-thirds of the woman's previous earnings or of such of those earnings as are taken into account for the purpose of computing benefits.
4. Where, under national law or practice, other methods are used to determine the cash benefits paid with respect to leave referred to in Article 4, the amount of such benefits shall be comparable to the amount resulting on average from the application of the preceding paragraph.
….
8. In order to protect the situation of women in the labour market, benefits in respect of the leave referred to in Articles 4 and 5 shall be provided through compulsory social insurance or public funds, or in a manner determined by national law and practice. An employer shall not be individually liable for the direct cost of any such monetary benefit to a woman employed by him or her without that employer's specific agreement except where:
(a) such is provided for in national law or practice in a member State prior to the date of adoption of this Convention by the International Labour Conference; or
(b) it is subsequently agreed at the national level by the government and the representative organisations of employers and workers.
Unlike other international treaties or conventions which countries adopt through a process of signing and ratifying, ILO Conventions have no signatory process. They are enforced only once a country has ratified the Convention. Since its adoption in 2000 three countries, Bulgaria, Italy and Slovakia have ratified this Convention. Forty countries ratified its predecessor, ILO 103.
3.2.4 Australia's Response to ILO 183
Australia has not ratified ILO 183. Australia responded to this Convention by noting that Australia does not have a tradition of social insurance and that employers fund various leave entitlements such as sick leave, long service leave and maternity leave where paid. [85] Further, Australia indicated that it is not appropriate to require all employers, particularly small employers, to fund maternity leave. [86]
QUESTIONS
Q.9 If a paid maternity leave scheme were to be introduced in Australia what components would it need to include in order to meet relevant international agreements?
CHAPTER 4: International comparisons
4.1 Introduction
Many of the countries identified as Australia's major trading partners [87] and other Organization for Economic Co-operation and Development (OECD) member countries provide paid maternity leave. See the table at Appendix B for more detailed information on country provisions.
Eighteen (soon to be 19) of Australia's top 20 trading partners provide some form of paid maternity leave. In 14 of these countries, paid leave is a statutory entitlement. These countries share the same economic concerns as Australia, that is, the desire to remain competitive and productive in a globally competitive market. Unlike Australia, they provide paid maternity leave.
The OECD is made up of 30 developed countries. They are committed to the market economy and pluralistic democracy, and together these countries produce two thirds of the world's goods and services. All of these countries, except for Australia and the United States, provide paid maternity leave. Until recently New Zealand was the only other OECD member country that did not offer some form of paid leave, however it has legislated for the introduction of a paid parental leave scheme to be introduced from 1 July 2002. The majority of OECD member countries provide paid maternity leave schemes funded by social security or social insurance.
The periods of paid leave offered in these countries range from two to five months. Responsibility for payment varies across nations and reflects institutional and social arrangements, including preferences for social insurance or welfare models.
Three types of models are identified.
4.2 Social security and social insurance schemes
Social insurance is a scheme run by the state whereby employed and self employed people pay contributions from their earnings into a social insurance fund. Employers and the state also contribute to the social insurance fund. Members may claim from the fund if various contingencies occur.
Nine of Australia's trading partners provide either a social insurance or social security funded paid maternity leave scheme: Canada, France, Germany, Italy, Japan, the Netherlands, Taiwan, the United Kingdom and Vietnam. Twenty four OECD member countries fall into this group: Austria, Belgium, Canada, Denmark, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Japan, Luxemburg, Mexico, the Netherlands, New Zealand (as of 1 July 2002) Norway, Poland, Portugal, Spain, Sweden, Turkey, and the United Kingdom.
In Sweden, paid maternity leave is funded through health and parental insurance. Employers provide the majority of contributions to these social insurance funds. The remaining contributions are made by government and employees. A general employee's contribution is made through health insurance contributions, which are charged in the form of a tax on employees and self employed people. All residents of Sweden may access this social insurance system provided they earn a base amount, or no more than seven and a half times this base amount. This amount is statistically determined annually by the government. [88]
In Taiwan, contributions are made to insurance on a ratio of 2: 7: 1 by employees, employers and government. The funds pay for a range of benefits including unemployment benefits, sickness and disability benefits and, in some cases, holiday and workers compensation. Only people who are fully insured and can satisfy the relevant contribution requirements qualify for the benefits. Often members of the workforce such as civil and public servants, or casual workers are only insured for a limited number of benefits, if at all.
In the United Kingdom, employers pay employees the statutory maternity pay, which they then claim back from the Inland Revenue. To be eligible for this payment, which currently is paid for up to 18 weeks, pregnant employees must have been employed by their present employer for at least 26 weeks, 15 weeks before the baby is due, and earn at least £67 (before tax) per week within a specified period. Employed women not eligible for this payment may qualify for a maternity allowance. In November 2001 the United Kingdom introduced legislation into Parliament which, if passed, will see a new framework for maternity leave introduced from 2003. Under the new framework both the period of leave and amount paid will be increased. [89]
In Canada, the government funded Employment Insurance Program provides maternity, parental and sickness benefits. The maternity benefits are available for a maximum of 15 weeks. The basic benefit rate is 55 per cent of the woman's average insured earnings up to a maximum payment of $413 per week. The payment is a taxable income, meaning Federal taxes will be deducted. To be eligible for the benefit the woman must show that her regular weekly earnings have decreased by more than 40 per cent and she has accumulated 600 insured hours in the last 52 weeks. [90]
New Zealand recently announced that it would introduce a social security funded scheme for paid parental leave from July 2002. The New Zealand plan provides 12 weeks of paid leave to women and men currently eligible for parental leave; that is 12 months service with an employer for 10 or more hours per week. [91] The payment is set at a maximum level of NZ$325 and will be taxed. Government estimates show that up to half of female wage and salary earners will receive 80 per cent of their earnings and about one third 100 per cent of previous earnings. The period of paid leave may be taken by a natural or adoptive parent and can be shared with a spouse or same sex partner where they would have been eligible for parental leave. Employees will remain eligible for 52 weeks unpaid leave. [92]
The amount paid by social insurance funds or social security schemes for maternity leave varies from 55 per cent of average weekly insurable earnings in the qualifying weeks in Canada to 100 per cent of the basic daily wage, in a number of European nations, including France. The duration of leave varies from eight weeks to six months.
In a number of these countries collective agreements may require an employer to top up a woman's wage whilst she is on maternity leave in addition to payments received under social insurance schemes.
4.3 Employer funded
Six of Australia's major trading partners require employers to pay for maternity leave: China, Korea, Malaysia, Indonesia, Hong Kong, and Saudi Arabia.
This is not the ILO's preferred source of payment for paid maternity leave because of the possible impact of discrimination against women in employment. The Government of the Republic of Korea has expressed concerns that requiring employers to fund paid maternity leave may disadvantage women, and has noted this concern to the United Nations, indicating that discussions on distributing the costs among social partners are underway. [93]
Employer responsibility for payment does not necessarily reduce the amount paid or the length of the leave available as compared to other countries where paid maternity leave is sourced from social security or social insurance schemes or combinations of social security/social insurance and employer funded schemes. [94] For example, Malaysia, China and Indonesia each provide for three months employer funded maternity leave on full pay.
4.4 Combination of employer and social security
Three of Australia's major trading partners provide a combination of mandated employer and social security funded maternity leave: India, Singapore and Thailand. Two OECD countries, Switzerland and Germany, provide employer and social security funded maternity leave. These schemes differ from social insurance models because they involve separate payments by the employer and government rather than a single payment from pooled funds.
In Thailand, the employer pays the employee full wages for 45 days of their leave. Once this 45 day payment has been exhausted, social security will pay 50 percent of the wage, up to a maximum fixed amount for a maximum 60 day period.
In India employers are required to pay maternity leave unless the woman is entitled to social security payments. Payment is made for 12 weeks at the average daily wage.
In Singapore, employer funding dominates. Government funding in Singapore was introduced in April 2001 in direct response to Singapore's declining birth rate, which currently stands at 1.48 children per woman. The Singaporean Government has adopted a policy to encourage families to have three children or more. Former arrangements required employers to pay eight weeks maternity leave at full pay in respect of a family's first two children. The lack of paid leave for a third child was seen as an impediment to increasing the birth rate. Under the new arrangements, employers are required to pay maternity leave for a third child and then recoup the payment from the government.
In Switzerland, the employer provides full pay to employees for a minimum of three weeks. If the employee has taken out special maternity insurance, these funds will pay between 70 - 80 per cent of the woman's wage for the period of leave which the employer will not cover. Usually sickness insurance funds provide payment for the minimum standard period of ten weeks leave, with six weeks being after the birth.
In Germany, women who have been paying into compulsory social insurance funds are entitled to receive their average net wage from six weeks before the birth date. Their average wage is based on the amount earned in the last 13 weeks before they became pregnant. Up to a certain amount of this will be paid per day by the state as a maternity benefit. The difference between this amount and the full average salary is usually covered by a supplement paid by the employer. In order to benefit from the state maternity pay a woman must have been a member of the compulsory state social security scheme, for 12 weeks between the tenth and fourth month before taking the payment. Non insured women receive a smaller amount paid by the state. [95]
4.5 Parental or family leave
Four of Australia's main trading partners provide for paid paternity or family leave: Canada, France, Italy and New Zealand (to be introduced 1 July 2002) and a further three provide this leave unpaid. [96] Eighteen OECD member countries provide for paternity or family leave. [97] In all but five of these countries the leave is paid. [98] In most cases either parent can take this leave on top of a woman's right to maternity leave and in some cases the leave may be taken at any time up until the child is eight years of age.
The provision of extended periods of parental or family leave is consistent with the ILO standard and its recommendation that longer periods of maternity leave be granted where possible.
Footnotes
71.
art 11(2).
72. Lars Adam Rehof Guide to the Travaux Preparatoires
of the United Nations Convention on the Elimination of All Forms of
Discrimination Against Women Martinus Nijhoff Publishers Dordrecht
1993, 127.
73. Lars Adam Rehof Guide to the Travaux Preparatoires
of the United Nations Convention on the Elimination of All Forms of
Discrimination Against Women Martinus Nijhoff Publishers Dordrecht
1993, 126.
74. art 11 para 2(c) deals specifically with assistance
to parents for family responsibilities. The need for a separate Convention
providing assistance to parents with family responsibilities was raised
by the delegate from Finland. See Lars Adam Rehof Guide to the Travaux
Preparatoires of the United Nations Convention on the Elimination of
All Forms of Discrimination Against Women Martinus Nijhoff Publishers
Dordrecht 1993, 125.
75. Lars Adam Rehof Guide to the Travaux Preparatoires
of the United Nations Convention on the Elimination of All Forms of
Discrimination Against Women Martinus Nijhoff Publishers Dordrecht
1993, 125.
76 Australia has also entered a reservation to CEDAW
in respect of combat duties.
77. rec 44 Human Rights and Equal Opportunity Commission Pregnant and Productive: It's a right not a privilege to work while
pregnant HREOC Sydney 2001, 229.
78. Government Response to the National Pregnancy
and Work Inquiry Report: www.law.gov.au/aghome/legalpol/cld/human/govt%5Fresponse.html
2000.
79. International Labour Organization Convention
Concerning the Revision of the Maternity Protection Convention (Revised)
1952 and Maternity Protection Recommendation International Labour
Conference (88th: 2000: Geneva Switzerland).
80. art 2.
81. art 4.
82. rec 1(1) Maternity Protection Recommendation.
83. As defined in art 4.
84. As set out in art 5.
85. International Labour Organization Maternity
Report V(1) Protection at Work Revision of the Maternity Protection
Convention (Revised) 1952 (No. 103) and Recommendation 1952 (No. 95) International Labour Conference 87th Session Geneva 1999, 45-47.
86. International Labour Organization Maternity
Report V(1) Protection at Work Revision of the Maternity Protection
Convention (Revised) 1952 (No. 103) and Recommendation 1952 (No. 95) International Labour Conference 87th Session Geneva 1999, 45-47.
87. Australia's top 20 trading partners are Japan,
United States, China, Republic of Korea, New Zealand, the United Kingdom,
Singapore, Taiwan, Germany, Malaysia, Indonesia, Italy, Hong Kong, Thailand,
Saudi Arabia, Canada, France, Vietnam, India and The Netherlands as
cited in Department of Foreign Affairs and Trade Composition of Trade
Australia 2000-01 Commonwealth of Australia Canberra 2001, 50.
88. Swedish Institute Fact Sheet on Sweden Swedish
Institute Stockholm 2001, 3; Laura Jordan Background Information
on European and Canadian Parental Leave Laws OLR Research Report
Connecticut 1999, www.cga.state.ct.us/ps99/rpt/olr/htm/99-r-1214.htm
89. Department of Trade and Industry Work and Parents:
Competitiveness and choice updated 20 November 2001: www.dti.gov.uk/er/individual/workparents_features.htm.
90. Human Rights Development Centre Maternity, Parental
and Sickness Benefits updated 8 April 2002: www.hrdc drhc.gc.ca/ae-ei/pubs/in201_e.shtml#Who.
91. Parental Leave and Employment Protection Act 1987 (NZ).
92. Hon Margaret Wilson Minister for Labour and Hon
Laila Harré Minister for Women's Affairs and Associate Minister Labour Paid Parental Leave - A Great Start Media Statement New
Zealand, 7 November 2001.
93. United Nations Women's Anti-Discrimination Committee
Anti-Discrimination Committee Told of Adverse Effects of Economic Crisis
on Situation of Women in Republic of Korea Press Release WOM/1069 7
July 1998.
94. International Labour Organization More than
120 Nations Provide Paid Maternity Leave, Gap in Employment Treatment
for Men and Women Still Exist Press Release Washington 15 February
1998.
95. Equal Opportunity Commission "Maternity, paternity
and parental benefits across Europe - Part One" (2001) 329 European
Industrial Relations Review, 21-27 at 26.
96. Japan, the Netherlands and the United Kingdom.
97. Austria, Belgium, Canada, Denmark, Finland, France,
Hungary, Iceland, Italy, Japan, the Netherlands, New Zealand, Norway,
Poland, Portugal, Spain, Sweden, the United Kingdom,
98. Japan, the Netherlands, Portugal, Spain and the
United Kingdom.