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Maternity Protection in International Law and Practice in North-East Asia
The tables below were prepared as a resource for the recent IUF North East Asia Maternity Protection workshop in Seoul, November 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 five North East Asia areas which were represented at the workshop in Seoul. None of these five countries 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?
    Korea Labour Standards Act and Equal Employment Act both apply to all persons working in any occupation in a business or workplace for the purpose of earning wages
    EXCEPT: domestic workers, day-labourers and ‘specially-employed workers’ – eg those classed as freelance contractors aren’t covered by LSA.
    Japan Labour Standards Law: a worker is anyone employed at an enterprise or place of business and receives wages,
    without regard to the kind of occupation.
    Mongolia Labour Law (1999): Any person working to receive wages under a contract of employment.
    Hong Kong SAR Employment Ordinance:
    A female employee under a continuous contract (min. of 4 consecutive weeks; at least 18 hours a week) is entitled to maternity leave.
    Paid leave only applicable to employees who have worked under continuous contract for no less than 40 weeks and have complied with regulations in full.
    Taiwan Under the Labour Standards Act (revised 2001) a worker means any person hired by an employer to do a job for which wages are paid. All female workers are entitled to maternity leave, however only those employed for 6 months continuously are entitled to full paid leave; those with under 6 mths service receive half pay.
     
    2. Amount of Leave
      Amount of Leave Limits/Conditions
    Korea 90 days - 90 days with 60 paid days (45 days must be given after delivery)
    - total cost can be borne by social insurance [LSA article 72] - to be phased in between 2006-2008, starting with ‘priority workplaces’
    - Between 30 & 90 days leave for women miscarrying after 16 weeks of pregnancy, depending on time of miscarriage
    Japan 14 weeks - 6 weeks before childbirth (14 wks in cases of multiple pregnancies (ie twins etc);
    - 8 weeks after childbirth
    Mongolia 120 days Both mothers and single fathers adopting new-born children are also entitled to up to 60 days leave
    Hong Kong SAR Ten weeks leave is provided -
    Taiwan 8 weeks Four weeks leave granted to those who miscarry after the first 3 months, for miscarriage at between 2 and 3 months’ pregnant 1 weeks’ leave is granted, and at less than two months pregant, five days’ leave is granted.
     
    3. Cash Benefits
      Pay Who Pays?
    Korea 100% of wages for 60 days Currently employer pays;
    Total cost can be borne by social insurance as of 2005 revisions, but this is to be phased in over three years (2006-2008) starting with smaller workplaces
    Japan Minimum 60% of wages. No legislated requirement that employer must pay wages during leave; left to negotiation at enterprise level. If a worker receives no wages during leave, government provides 60% of her average monthly wage through State Health Insurance Scheme.
    Mongolia 70% of wages Government-funded social insurance.
    Hong Kong SAR 4/5 of normal wages for pregnant employees. Employer to provide, but only to workers already under continuous contract for no less than 40 weeks, with a medical certificate and notice of pregnancy served accordance with regulatons.
    Taiwan 100% of average wage for workers employed longer than 6 mths, half pay for those in service less than 6 mths Employer
     
    4. Medical Benefits
      Benefit Who Provides It?
    Korea Mother-Child Health Act (not a labour-related law) stipulates that:
    “The head of city/county/urban district shall take appropriate measures necessary for the health care of pregnant or nursing women (up to 6 months after delivery) and infants... [which may include]: Diagnosis, provision of medicine or materials for medical treatment, treatments, operations and other treatment, accommodation in medical facilities, nursing, and transfer.”
    Intended as welfare support for single parents; but implementation by local governments is patchy.
    Japan Lump-sum birth and nursing grant of 300,000 yen National Health Insurance Scheme
    Mongolia Free health care Compulsory social insurance scheme for employees (mostly regular employees).
    Hong Kong SAR None for mothers, however basic health care (innoculations etc) is provided free for infants under 1 year. Employees must bear all medical costs of pregnancy and childbirth, in a system with limited public health facilities.
    Taiwan - 10-12 free consultations before childbirth; 90% of delivery costs
    - Infants under 18 months – free consultations
    - Labour Insurance premiums can also be deferred during maternity leave for up to 3 years
    National Health Insurance (95% of Taiwanese are covered by this scheme)
     
    5. Health protection
      Protection Conditions/Sanctions
    Korea Prohibition on use of pregnant workers in hazardous or dangerous jobs ; also on night work and overtime for pregnant women
    Women have the right to request lighter duties; women who have given birth in the previous 12 mths prohibited from working w. hazardous substances or doing overtime, night work etc unless she so requests.
    Fines apply for violations by employers.
    Japan Women have the right to request lighter duties
    Restrictions on overtime, or enforced night work, or hazardous or dangerous work for pregant workers or those who have given birth in the previous 12 months.
    Women must specifically request exemptions from dangerous work, overtime or night work.

    Sanctions apply for violations, through labour inspection agency.

    Mongolia Lighter duties, change of duties from hazardous or heavy work and/or reduction working hours may be arranged for pregnant or nursing mothers. A medical examination must be arranged to prove the necessity of changed or lighter duties.
    Hong Kong SAR Prohibition of assignment of heavy, hazardous or harmful work to pregnant workers. If a worker normally does such work, the employer must transfer her within 14 days. Submission of a medical certificate is required, and the employer may request an examination by another doctor at the cost of the employee. Employers are liable for fines of up to HK$50,000 (US$6,400) for non-compliance.
    Taiwan Prohibition of assignment of heavy, hazardous or harmful work to pregnant workers or those who have given birth in the previous 12 months; Employers must supply other jobs for workers who so request it, and may not reduce the wages of the worker as a result. Also employers must agree to an (unpaid) reduction of working hours if a worker requests it. Any act violating such provisions may result in prison term of no more than one year, or fines not in excess of NT$90, 000 (US$2,665).
     
    6. Employment Protection and Discrimination
      Protection Sanction
    Korea - Prohibition on direct or indirect discrimination on grounds of sex, marital status, pregnancy, childbirth etc.
    - Prohibition on dismissal during mat. leave + 30 days; or during parental leave;
    - Legal right to return to same position or position of equal wages and status.
    Criminal sanctions (fines or imprisonment) apply for violations
    Japan Prohibitions on dismissal of worker during maternity leave, whether before or after childbirth, nor within 30 days after returning to work. Sanctions would apply for violations; monitored by labour inspection agency.
    Mongolia Prohibition on dismissal of a pregnant woman or a woman with a child under 3 years unless in cases of bankruptcy or gross misconduct (also applies to single fathers with children under 3 years). Minimal fines of between 15,000 and 30,000 tugriks (US$12 and US$24) for employing women or children improperly.
    Hong Kong SAR Employers may not dismiss or discriminate against a pregnant employee in demotion or unfair employment conditions between the date that she is confirmed pregnant by medical certificate, till the date she returns to work after maternity leave, except in cases of gross misconduct, or if is on a probationary period and is dismissed for reasons other than her pregnancy. In all other cases it is prohibited to dismiss pregnant employees. Fines of HK$100,000 (US$12,800) apply to employers who do not comply with these regulations, as well as wages in lieu of notice, plus one month’s additional wages plus 10 weeks maternity leave pay.
    Taiwan Employers may not use marriage, pregnancy, childbirth or child-raising activities as reason for termination or stipulate the above as reasosn for workers being forced to leave their jobs or apply for leave without pay in any work rules, contracts or collective agreements. Fines of no less than NTD10,000 but no more than NTD100,000 apply.
     
    7. Breaks for Breastfeeding and Childcare Provisions
      Provisions
    Korea 2 x 30 minute break for breast feeding per day for workers with children under 1 year of age, paid as time worked.
    - Up to 365 days parental leave can be taken in total, including maternity leave, with fixed allowances from employment insurance fund, and the right to return to the same position or a similar position receiving the same wages.
    - Payment of subsidies to employers who have provided more than 30 days chilcare leave and retained the employment of those workers availing themselves of childcare leave, or reinstatement of workers who had left due to pregnancy, birth or childcare from between 6mths and 5 years of leaving the job.
    Japan Legal provision for childcare/breast-feeding breaks of 30 minutes twice per day for those with infants under 1 yr.
    Mongolia Two hours nursing or breast feeding breaks per day for mothers with babies under 6 mths (or twins under 12 mths) and 1 hour for mothers with babies between 6 and 12 mths old. This shall also apply to single fathers. Paid as time worked.
    Up to two years parental leave, unpaid, for mothers or single fathers of children (including adopted children) under the age of 3 years, with a right to return to previous job.
    No provisions for subsidised or employer-provided child care facilities.
    Hong Kong SAR No legal provision for breast-feeding breaks.
    No parental leave.
    No provisions for subsidised or employer-provided child care facilities.
    Taiwan 2 x 30 minute break for breast feeding per day for workers with children under 1 year of age, paid as time worked.
    Up to two years unpaid parental leave for parents of children under the age of 3 years, with a right to reinstatement except in cases of bankruptcy, sale or transfer of business, or reduction in workforce where employees cannot be reassigned.
    Competent govt authorities at each level to provide reward measures for employers re-hiring employees after leaving jobs for reasons relating to family responsibilities.
    Employers hiring more than 250 workers shall provide child care facilities or suitable childcare measures, for which govt subsidies can be provided.

    Relevant Labour Laws:

    Korea:
    Labour Standards Act (revised 2005)
    Labour Standards Act Enforcement Decree (last revised 2005)
    Equal Employment Act (revised 2005)
    Employment Insurance Act

    Japan:
    Labour standards Law
    Law on Securing, Etc. of Equal Opportunity and Treatment between Men and Women in Employment
    Health Insurance Act and others.

    Mongolia:
    Labour Law (1999)
    Social Security Law
    Hong Kong SAR Employment Ordinance
    Sex Discrimination Ordinance
    Family responsibilities Discrimination Ordinance

    Taiwan:
    Gender Equality in Employment Act (2001)
    Labour Standards Act (revised 2001)
    Labour Health and Safety Act (modified 2002)


    END
    [2006.05.08]