| Maternity
Protection in International Law and Practice in the Pacific |
The
tables below were prepared as a resource for the recent IUF Pacific Maternity
Protection workshop in Fiji, Decddember 2005. The first table summarises
the most important points of ILO Convention 183 on Maternity Protection
(2000), by looking at seven key areas. The tables thereafter look at each
of these seven areas, and compare national legislation across the three
countries which were represented at the workshop in Fiji. None of these
has yet ratified ILO Convention 183.
These materials are intended as a reference for campaigning for ratification
of ILO Convention 183, or a training resource for trade unionists, or
in collective bargaining around the issue of maternity protection.
More information
on maternity protection worldwide can be found at: the
Maternity Protection webpage of the Bureau of Workers' Activities (ACTRAV)
of the International Labour Organisation. |
|
| Seven
Key Issue Areas In ILO Convention No. 183 on Maternity Protection |
| Protection |
Convention
183 |
| 1.
Scope (Who is Protected?) |
All
married and unmarried employed women including those in atypical
forms of work |
| 2.
Amount of Leave |
Not
less than 14 weeks (remember: ILO Recommendation 191 calls for
18 weeks)
Provision
for 6 weeks compulsory postnatal leave |
| 3.
Cash Benefits |
Two
thirds of a woman's previous earnings OR Equivalent payment
Benefits
to be provided from social insurance or public funds or determined
by national law and practice |
| 4.
Medical Benefits |
Prenatal,
childbirth and postnatal care and hospitalisation care when
necessary |
| 5.
Health Protection |
Pregnant
and nursing women shall not be obliged to perform work that
is assessed as detrimental to the mother or child |
| 6.
Employment Protection and Discrimination |
Unlawful
for employer to dismiss a woman during pregnancy, whilst on
maternity leave or nursing, unless the reasons are unrelated
to pregnancy or nursing, and the burden of proof rests with
the employer
Guaranteed
right to return to the same position or an equivalent position
with equal pay
Protection
against discrimination in employment (eg hiring policies) on
grounds of maternity
Prohibition
of pregnancy testing at recruitment |
| 7.
Breaks For Breastfeeding/Childcare |
Right
to one or more daily breaks for breastfeeding/lactation
Right to
daily reduction of daily working hours for breastfeeding
Breaks
or reduction in hours counted as working time and therefore
paid. |
|
| |
| 1.
Scope - Who is Covered? |
| Australia |
An
employee, including part-time, but EXCLUDING casual or seasonal
employees, who has completed 12 mths of continuous service. |
| New
Zealand |
(As
of 1 December 2005) Any employee who has worked for the same employer
for an average of at least 10 hrs per week (incl. 1 hr every week
or 40 hrs every month) for the previous six mths of service. |
| Fiji |
CURRENT:
A female employed in any agricultural, commercial, professional
or industrial undertaking; to be eligible for allowance during leave
she must have been employed for not less than 150 days during the
9 months preceding her pregnancy.
ER BILL 2005: A woman employed in any workplace,
and including casuals, outworkers, domestic workers, part-time,
piece-work etc who has been employed for not less than 150 days
during 9 mths before birth
|
|
| |
| 2.
Amount of Leave |
| |
Amount
of Leave |
Limits/Conditions |
| Australia |
52 weeks |
As noted above
– must have completed 12 mths of continuous service. Includes
adoptive parents. |
| New
Zealand |
As of 1 December
2005: 14 weeks |
As noted above
– must worked for the same employer for an average of at least
10 hrs per week (incl. 1 hr every week or 40 hrs every month) for
the six mths of service.
Includes adoptive parents. |
| Fiji |
(Current law
& ER Bill 2005):
84 days (12 wks)
|
As noted above
– must have been employed for not less than 150 days in 9
mths prior to birth. |
|
| |
| 3.
Cash Benefits |
| |
Pay |
Who
Pays? |
| Australia |
No
legislated right to any cash benefits or pay during maternity leave |
- |
| New
Zealand |
As
of Apr 2005: NZ$357.30 per week (or $18,579.60 per year) before
tax |
Public
funds |
| Fiji |
Current:
F$1.50 per day
ER Bill 2005: Rate of pay the woman would have
received had she been at work
|
Employer |
|
| |
| 4.
Medical Benefits |
| |
Benefit |
Who
Provides It? |
| Australia |
No
legislated medical benefits for pregnant workers – but universal
healthcare system provides a safety net for pregnant women &
infants (in theory!)
|
- |
| New
Zealand |
No
legislated medical benefits for pregnant workers – healthcare
system provides a safety net? |
- |
| Fiji |
No
legislated medical benefits for pregnant workers.
In practice, access to maternal and infant health
services is restricted for women in rural areas.
|
- |
|
| |
| 5.
Health protection |
| |
Protection |
Conditions/Sanctions |
| Australia |
Employers
required to provide a safe and healthy workplace for all employees
including pregnant workers. Discrimination on grounds of pregnancy
(or potential pregnancy) illegal under Commonwealth & State/Territory
Anti-Discrimination legislation. Also National Codes of Practice
or Standards on issues such as Manual Handling or Control of Lead
for pregnant workers. |
NB:
National Health and Safety Commission, which currently oversees
these matters, is about to be replaced by the Australian Safety
& Compensation Council. This has been strongly opposed by the
ACTU, as the new body will have only an advisory role, rather than
legislated powers and responsibilities. |
| New
Zealand |
Section
16 of PLEPA, if a worker is unable to perform her work to the safety
of herself or others, an employer may temporarily transfer her to
a different job.
Under the Health and Safety in Employment Act, a worker has the
right to refuse to do work that she or he may believe to do serious
harm to herself or himself. [Section 28A]
Human Rights Act 1993 allows for preferential treatment granted
by reason of a woman’s pregnancy or childbirth [Section 74]
PLEPA also provides for Special unpaid leave for up to 10 days for
a pregnant mother, before maternity leave begins, to attend ante-natal
classes or doctor/midwife appointments
|
- |
| Fiji |
No
woman worker shall be assigned manual transport of loads during
pregnancy – Health & Safety at Work Act 1996.
|
A
woman can be required to manually transport loads during pregnancy
with her consent, but must be 50% lighter than the maximum weight
for men
Penalties: Violation of the Health & Safety Act carries a maximum
fine for corporations of F$20,000 |
|
| |
| 6.
Employment Protection and Discrimination |
| |
Protection |
Sanction |
| Australia |
Sex
Discrimination Act 1984 and the Workplace Relations Act 1996 make
it unlawful to discriminate on grounds of pregnancy or potential
pregnancy. This includes dismissal on these grounds, unless there
are genuine financial or operational reasons for dismissal.
Under the Workplace Relations Act an employee is in most circumstances
entitled to return to work at the same position after parental leave,
including maternity leave.
|
- |
| New
Zealand |
An
employee returning from parental leave (including maternity leave)
is entitled to the same role with the same terms and conditions
of work.
In general, both the PLEPA and the Human Rights Act forbid dismissal
on grounds of pregnancy or parental leave. Section 51 & 52 of
the PLEPA does allow for certain cases in which this is allowable.
|
Sanctions
do apply for breaches of the PLEPA and the Human Rights Act. |
| Fiji |
Current:
It is unlawful to dismiss a woman during her maternity leave, either
before or after childbirth.
ER Bill 2005: A woman who returns to employment after maternity
leave must be appointed the same or equivalent position without
loss of salary, wages, benefits and seniority.
No woman can be dismissed on the grounds of pregnancy, and where
a dismissal occurs while a woman is pregnant, the burden of proof
lies with the employer to prove reasons otherwise.
|
- |
|
| |
| 7.
Breaks for Breastfeeding and Childcare Provisions |
| |
Provisions |
| Australia |
No
legislated right to paid breastfeeding breaks – although the
Sex Discrimination (Pregnancy at Work) Amendment Act 2003 was passed
to make clear that breastfeeding is a ground of unlawful sex discrimination
under the Sex Discrimination Act. |
| New
Zealand |
Currently
no specific legislated right to paid breastfeeding breaks. NZ HRC
states: “a mother’s right to breastfeed in public is
substantiated in NZ case law, although this right has not yet been
tested in the courts re: breastfeeding at work…”
CTU supports a legislated right to breastfeeding breaks and facilities
upon return to work. |
| Fiji |
Current:
No provision for paid breastfeeding breaks
ER Bill 2005:
-
Health and
Safety at Work Act 1996 Article 9 (1) states that any workplace
employing more than 200 people shall establish adequate facilities
for nursing and day care.
|
|
|
END
[2006.05.09]
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