The Right to Work: Maternity Protection Under the Spotlight
The South African Constitution provides that every citizen has the right to choose his or her trade, occupation or profession freely1. For women, the right to work is much more complex than simply choosing a trade, occupation or profession. The working world was not designed to accommodate women and, therefore, reform of laws is needed to ensure equal participation and access to the labour force by women.
The Legal Resources Centre (LRC) has been engaged on the issue of women’s right to work at a national, as well as international level. This article explores some of the issues that we have raised while working collaboratively with partners.2
A SUBSTANTIVELY EQUAL WORK ENVIRONMENT
The International Labour Organization (ILO) has recognised that, in order to advance and realise women’s access to the labour market, there has to be an emphasis on rights linked to the elimination of discrimination, but also the promotion of women’s rights to work safely and securely and with due regard to their reproductive and family responsibilities3. The achievement of gender equality is now one of the United Nations Sustainable Development Goals and the workplace is a critical area in which much work will need to be done in order to achieve gender equality.
The Convention on the Elimination of All Forms of Discrimination against Women provides, in Article 11, that:
1. State parties shall take all appropriate measures to eliminate discrimination against women in the field of employment in order to ensure, on a basis of equality of men and women, the same rights, in particular:
(e) the right to social security, particularly in cases of retirement, unemployment, sickness, invalidity, and old age and other incapacity to work, as well as the right to paid leave;
2. In order to prevent discrimination against women on the grounds of marriage or maternity and to ensure their effective right to work, State 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.
Although South African law provides for paid maternity leave for female employees, women who are self-employed are currently not protected. Traditionally, this category of women has been perceived as falling within a category of greater financial sustainability and, therefore, able to provide for themselves during the time that they are on maternity leave.
The reality is that there is a lack of recognition given to women who are self-employed and who work in the informal labour sector (traders, spaza shop operators, care workers). Since the law currently makes no provision for these women to enjoy maternity protection, they have to make the difficult choice between working to provide for themselves or starting a family. There is a clear element of discrimination as there is no difference between women working in the informal or formal sectors during the time of maternity and childbirth. They have the same responsibilities in respect of raising a newborn, the same need to bond with a newborn and, certainly, the same financial burden during this time. The question, therefore, is whether the fact that they are not provided with protection amounts to discrimination between two classes of women?
The ILO has adopted three Conventions on maternity protection: (i) The Maternity Protection Convention, 1919 (No. 3), (ii) the Maternity Protection Convention (Revised), 1952 (No. 103), and (iii) the Maternity Protection Convention, 2000 (No. 183). Thirty Member States have ratified Convention No. 3 and Convention No. 103. Convention No. 1834 entered into force on 7 February 2002 and over 18 countries have ratified it. Sixty-three countries are party to at least one maternity protection Convention. This has influenced the enactment of domestic legislation because almost every country in the world makes some form of provision for maternity protection.
There has been an increase in advocacy5 to encourage the South African government to ratify Convention 183. Convention 183 is divided into different aspects of maternity protection:
- Health protection
- Maternity leave
- Cash and medical benefits
Our focus in this article is on the protections afforded to self-employed women, and so we will not address issues of health protection, as these would be available to self-employed women through the public health system6. Convention 183 is implemented through Recommendation No. 191, which suggests and promotes a higher standard of protection and benefits than required by Convention 183.
1. Convention 183
This Convention applies to all employed women, including those in atypical forms of dependent work7. However, each Member that ratifies this Convention may, after consulting the representative organisations of employers and workers concerned, exclude wholly or partly from the scope of the Convention limited categories of workers when its application to these categories would raise social problems of a substantial nature8.
Internationally, there have been advances made in respect of the scope of protection and broadened scope in respect of those who qualify for protection. Since Convention No. 3, for instance, coverage has being extended to all women who are employed, including those who are wage earners working from home. Whether or not the women, in practice or implementation, benefit from the protection is dependent, in most cases, on how domestic laws define ‘worker’ or who is purposefully excluded from labour legislation or social security benefits. Some countries also include criteria for eligibility to qualify for benefits.
1. Workers excluded from maternity leave provisions
Most countries provide maternity protection for employed women in the private as well as public sectors. In many countries various categories of women are excluded from protection because they are excluded from labour or social assistance legislation in the country. Frequently excluded groups in terms of the ILO are:
- Domestic workers, who often qualify for maternity leave but not for cash benefits during that time period9;
- Members of an employer’s family or women working in family undertakings, who qualify for maternity leave but would not qualify for cash benefits during that time10;
- Causal or temporary workers, who qualify for maternity leave but not cash benefits during that time11; and
- Workers earning over a certain ceiling amount, who qualify for maternity leave but not cash benefits during that time12.
In its 2008 report, the ILO Committee of Experts on the Application of Conventions and Recommendations expressed concern that some categories of workers are excluded from coverage in several countries that have ratified at least one of the Conventions related to maternity leave. This is especially the case for women working in domestic service, stock raising and agriculture, and permanent or temporary officials working in state administration and public bodies. These industries are also poorly regulated and women working in these professions are particularly at risk of exploitation.
MEETING THE STANDARD
Self-employed women within the South African context appear to fall into a particularly vulnerable group of workers. They have taken on the dual role of both employer and employee. The current legal framework appears to focus solely on making provision for women as employees and does not take into account that women can be self-employed. There appears to be a general acceptance that women who are self-employed will attend to their own maternity protection by taking the necessary steps to save money for the period of maternity.
ILO Conventions No. 3 and No. 103 emphasised that employers should not be individually liable for the cost of maternity benefits payable to women employed by them, and that benefits should be provided through social insurance or other public funds. This is of particular importance for self-employed women, as they can only claim benefits from various forms of social insurance. The principle of payment through social insurance or other public funds is important for mitigating against self-employed women, who directly bear the costs of maternity leave. This principle is maintained in Convention No. 183, although this Convention allows employers to be individually liable for maternity benefits in cases where they have given their specific agreement, where this was determined at the national level before the adoption of Convention No. 183 in 2000, or where it is agreed upon at the national level by the government and the social partners.
In recent years we have seen more proactive steps being taken by government to acknowledge not only women’s role within the labour force, but also within the family and community. An example of this can be seen in the White Paper on Families in South Africa13. The White Paper mandates the Department of Social Development to explore the possibility of calling for the inclusion of paternity leave in the Basic Conditions of Employment Act 75 of 1997 and strengthening the recognition of parenting and support for parents in the workplace14. The White Paper further mandates the Department of Labour to ensure that labour policies and laws support gender equity at the workplace and to recommend the development and implementation of paternity leave15. These provisions acknowledge the unequal burden women carry in respect of unpaid care work within their homes and communities. They do not impact directly on maternity protections, but they are an indication that government is beginning to view matters differently, perhaps even more holistically, and is willing to address gender equality through identifying all relevant areas that would impact on the working life of women.
The South African Law Reform Commission has embarked on an investigation in respect of extending maternity protections offered by the State to self-employed women. The investigation will hopefully address the current predicament faced by self-employed women working in both the formal and informal sectors. We trust that this process will be another positive step towards realising women’s rights to equality within the workplace.
- Section 22 of the Constitution
- Partners include the Commission for Gender Equality, the Gender Desk of COSATU, the Programme for Women’s Economic Social and Cultural Rights, the ESCR Net’s Women’s Working Group, and Wellness Foundation Trust
- ILO Workers with Family Responsibilities Convention, 1981 (no. 156)
- South Africa has not ratified Convention No. 183.
- Advocacy efforts have been made by COSATU as well as the Commission for Gender Equality, along with the ILO
- This is by no means an endorsement of the functionality and quality of the services that are afforded through the public health system
- Convention 183 Article 2(1).
- Convention 183 Article 2(2)
- Argentina, Bangladesh, Cambodia, Egypt and Honduras.
- Dominican Republic, Ecuador and Nigeria.
- Panama and Vietnam.
- Dominican Republic and El Salvador.
- Department of Social Development, Republic of South Africa, White Paper on Families in South Africa October 2012.
- Ibid 46.
- Ibid 50.