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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]