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The first
ILO Conventions
Since 1919 the International Labour Office (ILO) has
tried to find solutions to enable women in the workforce
to reconcile their professional and family responsibilities,
or, in Professor van Esterik's terms, "to juggle
mother work and other work". One of the first
Conventions adopted by the International Labour Conference
in 1919 was the Maternity Protection Convention, number
3. Women's crucial role in the workforce in the first
world war no doubt spurred the ILO to give priority
to protecting pregnant workers and those who had recently
given birth. After the second world war, Convention
number 3 was revised to take into account changes
in national law and practice. The resulting Maternity
Protection Convention, number 103, dating from 1952,
was supplemented by Recommendation number 95. Once
adopted and ratified by member states, ILO Conventions
must be implemented into national legislation which
is reviewed by the ILO monitoring process. This process,
however, is non-enforceable and has no sanctions attached:
the obligation upon a member to take legislative measures
state is therefore a moral one. A Recommendation on
the other hand, is purely optional and there is no
obligation to translate it into national legislation.
Drafts
and revisions of revisions
In 1997 the Governing Body of the ILO decided
to place the revision of the 1952 Maternity Protection
Convention and Recommendation upon the agenda of the
87th ILO Conference, in June 1999. 1919, 1952 and
1999: there is a gap of about thirty years between
each revision of the Maternity Protection Convention,
and involvement in the process is therefore a chance
not to be missed. The involvement of breastfeeding
advocates in the issue of working mothers is all the
more important because of the growing body of scientific
evidence on the health benefits of breastfeeding to
babies and their mothers. Studies highlight the economic
advantages of breastfeeding for families and also
the savings for employers on reduced employee absenteeism
and for governments on reduced health care costs.
International public health recommendations that mothers
breastfeed their babies exclusively until around six
months and thereafter for up to two years and beyond
will remain pure theory for most women unless their
employment conditions provide for optimal breastfeeding
and unless national law and practice provide for adequate
leave and facilities.
IBFAN and WABA
therefore decided to follow this process as closely
as possible and to plan for participation in the 87th
ILO Conference in June, 1999.
To
ratify or not to ratify?
The ILO is concerned that, apart from a handful of
Conventions, most labour standards are not well known
and moreover, in the sixteen years since 1983, only
three Conventions have received at least 20 ratifications
- when the ILO counts 186 Member states. The Maternity
Protection Conventions, although prior to 1983, have
received only 33 and 36 ratifications, in stark contrast
to the Convention on the Rights of the Child is the
most widely ratified Convention in history, ratified
by all but two countries of the world. The Secretariat's
approach was therefore to propose a more easily ratifiable
draft, by avoiding "inflexibility and prescription"
and by formulating "general principles consistent
with national laws and practice". In the context
of increasing trade liberalization, governments such
as the U.S.A., Australia, New Zealand and Canada as
well as the majority of employers supported more balance
and flexibility in the new Convention. It should be
noted that the U.S. government has ratified only twelve
out of a total of 180 ILO Conventions, and of these
only ten are in force in the U.S. - less than in Somalia.
Australia, New Zealand and the USA are also those
countries which have no paid maternity leave, but
instead a period of unpaid parental leave. On the
other hand, 119 countries, that is 64% of ILO member
countries, provide for a period of paid maternity
leave of more than 12 weeks and 62 countries, including
the European Union, provide at least 14 weeks. Paid
leaves of 17 weeks or more are already provided by
18 countries.
Many of these countries therefore saw these "general
principles" as regression since 1952 and stressed
the normative role of the ILO. NGOs pointed to the
role of the ILO as a moral beacon and insisted on
the need to set high standards in view of the many
countries with national laws which go far beyond the
present ILO Maternity Protection Conventions.
What
do working women really need?
The ILO asserts correctly that "All Women are
Working Women" and that "Maternity protection
is a pre-condition of genuine equality". The
basic elements of maternity protection are identified
as: the right to maternity leave, to protect the health
of the mother and her child;
the right to cash benefits to replace earnings lost
during the leave period and thus enable the woman
to recuperate fully from childbirth before her return
to work; the right to medical benefits, including
prenatal, confinement and postnatal care. At the same
time, women must be guaranteed protection against
loss of employment and also retraining for reinsertion
at an equivalent job level after maternity leave.
However, the greatest problem to ratification by member
states is the question of who bears these costs, when
most countries of the world do not have adequate social
security systems. The longer the period of paid maternity
leave, the higher the financial costs involved and
the greater the need for retraining. If the employers
are legally bound to bear these costs, then they may
be more reluctant to hire women workers. It can be
said that breastfeeding was not exactly high on the
agenda of the ILO Secretariat when they submitted
the Proposed Conclusions for a revised Convention
and Recommendation to government, employer and worker
delegates at the 87th ILO Conference in June, 1999.
The Maternity
Protection Committee of the 87th ILO Conference
To provide the technical background to these complex
issues, the ILO Secretariat prepared a first comprehensive
Report V(1) on Maternity Protection at Work for member
states (governments, employers and workers). This
included the health and economic advantages of breastfeeding,
the BFHI and comprehensive statistics on women's participation
in the labour force during their child-bearing years.
A questionnaire was designed and sent to member states
along with Report V(1), and replies formed the basis
of the second report on Maternity Protection at Work
V(2) which was submitted to the Maternity Protection
Committee of the 87th ILO Conference. However, this
questionnaire showed serious flaws in design, especially
in those questions pertaining to breastfeeding breaks
and facilities to breastfeed or to express breastmilk.
Although over 80 countries have such provisions in
their national laws, the ILO Secretariat analysed
the replies received and proposed in Report V(2) that
provision for breastfeeding breaks and facilities
be removed from the new Convention under discussion
to the optional recommendation. This have would meant
that breastfeeding and provisions for lactating mothers
were absent from the new revision of the Convention.
Friends and
allies
It was therefore extremely important to prepare convincing
arguments in favour of the rights of breastfeeding
mothers. The ILO is unlike the World Health Organisation
in that it has a tripartite structure composed of
governments, employers and workers. NGOs are present
as observers and are not involved in discussions,
so IBFAN and WABA needed to seek out other allies.
The trade unions represent the workers at the ILO;
they proved to be willing and even eager to learn
about the advantages of breastfeeding. The International
Council of Nurses made a strong opening statement
to the discussions of the Committee: the Baby Friendly
Hospital Initiative has certainly raised awareness
of the importance of breastfeeding among the many
unionised employees in the health care sector. WHO
and UNICEF provided technical clarification on breastfeeding
issues in their several statements to the Committee.
A second strategy was for IBFAN and WABA to contact
national IBFAN groups and WABA members to contact
government, employer and worker delegates before the
87th ILO Conference and to prepare materials explaining
why breastfeeding is central to maternal health and
wellbeing and to child health and development. We
aimed to create links between Ministries of Health,
which were not involved in the discussions about the
proposed revised Convention and Ministries of Labour.
Unfortunately, even Ministries of Labour now have
narrow areas of responsibility and are often assimilated
into other ministries dealing with competitiveness,
enterprise development or gender equity.
Outcomes
The twin friends or foes of globalization and liberalization
dominated discussions, with employers and certain
governments pushing for the lowest common denominator
and the strict minimum of enforceable obligations.
The Maternity Protection Committee decided that the
extension of the period of remunerated maternity leave
in the 1952 Convention was impossible because of the
costs involved. Thus the period of remunerated maternity
leave remained at 12 weeks in the proposed draft Convention
but was raised to 16 weeks in the proposed Recommendation.
Likewise, remunerated breastfeeding breaks, as stipulated
in the 1952 Convention, were identified as an obstacle
to ratification and strongly contested.
Despite this, major improvements were made to the
revisions of the Convention as proposed by the ILO
Secretariat by delegates to the Maternity Protection
Committee. Delegates from governments, workers and
even the employers welcomed information about the
advantages of breastfeeding and were keen to discuss
and find out more. Paid breastfeeding breaks were
reinstated in the proposed Convention by a very narrow
majority, but the provision of "adequate hygienic
conditions" for breastfeeding and breastmilk
expression remained in the draft Recommendation. The
new proposed Convention includes extending the scope
to all women, a woman being defined as "a female
person without discrimination whatsoever". It
also proved possible to prevent certain provisions
from being undermined, such as the period of compulsory
leave after childbirth, the length of which is still
to be defined, as well as additional leave for complications
arising from pregnancy and childbirth.
The 88th ILO
Conference in June, 2000
Breastfeeding advocacy activities during this year's
ILO Conference may, at best, have prevented the provisions
for lactating women from being removed to an optional
Recommendation. But with a period of still only twelve
paid weeks maternity leave, to be taken before and
after delivery, breastfeeding for many mothers and
babies remains a minimal possibility. Now that the
"Proposed Conclusions with a view to a Convention
and Recommendation" have been sent out to all
member states of the ILO, along with the report of
the deliberations of the Maternity Protection Committee
and a second questionnaire, there is much time to
change and weaken the measures proposed - or to strengthen
them. Member States will comment on the Proposed Conclusions
in the light of their national laws and practice.
It is therefore important for IBFAN groups and WABA
members to contact their government, employer and
worker representatives at the ILO to discuss with
them and educate them about the importance of breastfeeding.
We have seen that this information is not only necessary;
it is also welcomed. Through the process of reports,
questionnaires, comments and discussions, the ILO
is fostering a series of consultative mechanisms to
involve all parties as well as, possibly, other Ministries
and NGOs, in the discussions about maternity protection.
By June 2000 it will be too late. The opposition to
paid maternity leave and breastfeeding breaks is very
strong. Many employers and friendly governments stress
the principle of free choice: women should be able
to choose whether to breastfeed or bottle-feed. This
ignores the fact that current provisions for maternity
leave allow women no choice at all, other than to
bottle-feed. Indeed, having children at all is a matter
of private choice, and the costs must not be borne
by the state. For many employers, breastfeeding breaks
are seen as pure recreation, much like smoking breaks
for male workers. Indeed, the President of the Swiss
Employers' Confederation, shares this attitude. In
opposing the use of excess insurance funds for military
service to finance maternity protection, he states
: "It is normal for women to pay for their own
social protection. You cannot compare child-bearing
and military service. It is not as if men were paid
a wage to play football".
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