Presented at a Maternity Protection Workshop, Maseru, 23-24 April 2013 Professor Marius Olivier Olivier, Extraordinary Professor: Faculty of Law Law, University of Northwest, South Africa; Director: Institute for Social Law and Policy (ISLP)
1. Introduction 2. International standards 3. Regional (SADC) standards 4. Labour and social security protection 5. Arrangements relating to the period of maternity leave and paid benefits 6. Insufficient medical benefits 7. Negative impact of stringent qualifying conditions 8. Dismissal, discrimination and other forms of protection 9. Weak paternity protection 10 Inadequate protection for self employed women and 10. Inadequate protection for self-employed women and women in the informal economy 11. The way forward: the need for a principled response
Maternity protection and paternity leave an indication of a country s social security system s responsiveness to the needs of men and women Several dimensionsi indicative of disadvantaged to which h women are exposed inadequacy of current arrangements and lack of sufficient speciliased and targeted arrangements Marginalisation of self- and informally employed Negative impact of pure labour law protection on employer hiring policies Failure to provide paid maternity leave and/or paid benefits on par with international standards Insufficient leave provision Overbroad qualifying conditions Challenges relating to adjustment of working conditions and ante- and postnatal care Insufficient medical care provision Insufficient paternity leave arrangements exacerbating women s weak labour market position
ILO Convention 183 of 2000 = golden standard 14 weeks maternity leave Cash benefits: Two-thirds of previous earnings Medical care: prenatal, childbirth, postnatal, hospitalisation Dismissal protection; right to return to same/similar position Protection against discrimination Protection against work which is prejudicial to or a significant risk to the woman and/or child Breastfeeding: daily breaks or reduction of hours
Social Charter (2003) Harmonisation: paid maternity leave Adequate social protection/social security benefits; sufficient resources and social assistance Code on Social Security (2007) ILO Convention 183 No discrimination Appropriate working conditions and environments 14 weeks; 66% of income = cash benefits Paternity leave shared responsibility
Protocol on Gender and Development (2008) Art 4(5): Member States shall enact and enforce legislative and other measures to- provide for a minimum of three months paid maternity leave and job security for women going on maternity leave. This shall apply in both the public and the private sector including the informal sector; Art 7(12): Member States shall enact and enforce legislative measures prohibiting the dismissal or denial of recruitment on the grounds of pregnancy, maternity leave or chronic diseases including HIV and AIDS.
Labour law protection (individual employer liability): Several countries Negative impact on employer hiring practices Therefore; provision via social security schemes/public funds advocated by ILO Mixed labour law/social security protection: e.g. South Africa; Namibia Some SADC countries movementto transfer this from employer to scheme liability (e.g.: Tanzania: NSSF & LAPF) This shift is still in its infancy
Some SADC countries; 12 weeks Certain countries: lesser period (Malawi, Mozambique) A few countries: 16 weeks (SA, Namibia, Zambia (some employees) or more The special case of Lesotho: 2 weeks (textile, clothing and leather manufacturing); 6 weeks paid (private security); 12 weeks (others) South Africa: no employer obligation to provide paid maternity; but limited UIF provision
Social security scheme protection/liability: generally less than 100% South Africa: insufficient UIF protection, but amendments intended Conclusion: inadequate protection Labour law/individual employer liability little incentive to extend period, and in particular of paid benefits Social Security scheme liability: need to increase period and percentage of paid benefits
Overall: lack of sufficient provision of medical care National health insurance systems still embryonic Reliance on expensive & exclusionary private medical care or poorly resourced public health services Some countries: free medical care, buttobe provided by public health service
Qualifying periods ranging from one to three years women who do not meet the period excluded from protection Social security scheme limitation: sufficient period of contribution required (SA UIF) Women who break their service are disadvantaged
Generally, extensive dismissal/return to work/discrimination protection Breastfeeding: protection extended Adjustment of working conditions: some SADC countries But: general lack of compulsory ante- and post-natal care facilities
Generally, not taken seriously in SADC, despite some improvement Often subsumed in, e.g., family responsibility leave (i.e. not alone-standing) Severely restricted period Usually, no obligation to provide paid benefits This perpetuates stereotypes and increases women s care burden This also forces women to exit the labour market, with severe social security implications
Generally, protection limited to formal sector and identifiable employment relationship Informal workers thus excluded Some countries; developing scheme frameworks extending coverage to informal workers Public funds provision?
Needs and characteristics of both males and females have to be recognised In particular women s biological characteristics and social role, as reflected in maternity, have to be appreciated CEDAW (UN Convention on the Elimination of All Forms of Discriminationi i i against Women), ratified by Lesotho requires the elimination of discrimination against women Special measures aimed at protecting maternity required deemed not to constitute discrimination, even if these measures are of a permanent nature
This provides a basis for introducing special provisions aimed at continued coverage of women who temporarily exit the labour market due to maternity-related responsibilities Appreciate true context to which women in SADC are exposed Steps need to be taken to address and redress gender discriminationi i and disadvantage
For example, shifting liability for maternity protection from employers to social security schemes may be a most appropriate route to follow In this way, as far as the contingency of maternity is concerned, the burden is shared, and the notion of solidarity between men and women is reinforced (as men and also contribute)
Much more needs to be done to align elements of maternity protection with internationally and regionally accepted standards, inparticularintheareasof: Cash benefits and periods of maternity leave Health care Qualifying conditions Ante- and post-natal care Coverage of informal workers
Also: there is a need to introduce appropriate paternity leave arrangements, as this will cause the sharing of burden of child care and allowing women who gave birth to more readily access the formal labour market Therefore, in this area (i.e. paternity leave), there is an evident need to introduce special measures