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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

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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]

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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?

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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.