IDENTIFICACION DEL CERTIFICADO DE PROFESIONALIDAD

The Pregnant Workers Directive sets out similar standards to those of the ILO. The Pregnant Workers Directive provides for the same duration of maternity leave, together with a compulsory period of leave.208 _{However, a major departure from the ILO standards on maternity protection is} that the Pregnant Workers Directive does not prescribe a specified amount of cash benefits which should be paid to the employee over the maternity leave, nor does it set out eligibility requirements for cash benefits during maternity leave.

According to the ILO’s Maternity Protection Convention, 1952 and the Maternity Protection

Convention, 2000, a woman on maternity leave is entitled to cash benefits in the amount of two-

thirds of her previous earnings. This amounts to 66 per cent of her previous earnings. This amount is also prescribed in the SADC’s Code.209 _{The Pregnant Workers Directive guarantees} income at least equivalent to that which the employee concerned would otherwise receive as payment and provides that member states may determine the eligibility of such benefits.210 The EU sets out the same standards of employment protection as prescribed by the ILO.211 However, the provisions of the Pregnant Workers Directive alone are less extensive.212 Therefore, a claim of unfair dismissal based on pregnancy requires reliance on the 2006 Equal Treatment Directive.213 _{The limited inclusion of employment protection standards in the}

206 _Ibid.

207 _{A Aybars ‘Work-life balance in the EU and leave arrangements across welfare regimes’ (2007) 38(6) Industrial}

Relations Journal 569, 587.

208 _{Pregnant Workers Directive (note 80 above) art 8.}

209 _{SADC Code (note 45 above) art 8; Olivier, Dupper & Govindjee (note 52 above) 406.} 210 _{Pregnant Workers Directive (note 80 above) art 11.}

211 _{2006 Equal Treatment Directive (note 114 above); Landau & Beigbeder (note 72 above) 141.} 212 _{Pregnant Workers Directive (note 80 above).}

Pregnant Workers Directive has required reliance on interpretation from the ECJ regarding unfair dismissals on the grounds of pregnancy.214

The AU, with its strong commitment towards gender equality throughout Africa, aims for the accomplishment of the elimination of all discriminatory practices against women.215 _Although the SADC Code is not binding, it states that measures must be taken to ensure that women are not discriminated against or dismissed on grounds of maternity.216 _{Ultimately, the primary} international obligation applicable to the prohibition on discrimination on grounds of pregnancy may be found in the CEDAW.217 _{Article 11(2) of the CEDAW specifically states that state} parties must take measures to prevent the discrimination against women on the grounds of maternity and to ensure their effective right to work.218 _{These measures include the prohibition} against dismissals on the grounds of pregnancy or maternity leave.219

The ILO and the EU have incorporated standards which govern parental leave.220 _{The ILO} Family Responsibilities Recommendation, 1981 and the Maternity Protection Recommendation, 2000 acknowledge the right to paternity leave as an essential aspect of promoting shared parental

responsibilities. Similarly, the right to adoption leave is recognised through the Maternity

Protection Recommendation, 2000. The Family Responsibilities Convention, 1981 gave rise to

the appreciation of shared parental responsibilities between women and men employees.221 _This appreciation was adopted and developed by the EU in the 1996 Parental Leave Directive which provides parental leave with employment protection rights attached to the parental leave.222 _In provisions similar to the ILO, the EU recognises the need to provide paternity leave and adoption leave but has not adopted any minimum standards to this effect.223 _{Therefore, neither} organisation prescribes minimum standards relating to paternity leave.224

214 _{Handels- og (note 97 above); Dekker (note 104 above); Webb 1994 (note 108 above).} 215 _{Samb (note 9 above) 74.}

216 _{Article 8 of the Code on Social Security in the SADC.}

217_{Convention on the Elimination of all Forms of Discrimination against Women (adopted 18 December 1979,}

entered into force 3 September 1981) 1249 UNTS 13 (CEDAW).

218 _{Ibid art 11(2).} 219 _{Ibid art 11(2)(a).}

220 _{Dancaster & Cohen (note 4 above) 2477.} 221 _{Landau & Beigbeder (note 72 above) 168.} 222 _{Ibid 172.}

223 _{2006 Equal Treatment Directive (note 114 above) art 16; McGlynn (note 75 above) 228.} 224 _{Dancaster & Cohen (note 4 above) 2477.}

The SADC does not make provision for parental leave. This corresponds with the practical coverage of SADC standards which reflects that none of the countries within the SADC region provides parental leave.225 _{Parental leave measures would be an effective mechanism for} enforcing shared childcare responsibilities within a household.226 _{The SADC standards are also} silent on issues of duration of leave, and any cash benefits that should be applicable.227 _The provisions of the AU, and particularly the African Charter, do not elaborate on socio-economic rights to the extent of the SADC. The approach of the African Charter in this regard has been described as ‘unique’ because of its emphasis on family and community.228 _{Considering that the} regions of the SADC and the AU are some of the poorest of regions in the world, these organisations must make a committed effort to providing social security measures.229

All international and regional organisations discussed in this thesis are committed to the protection of the health and safety of pregnant and breastfeeding employees. However, the extensive provisions of the ILO and the EU may be contrasted with the limited measures adopted by the AU and the SADC. Although the SADC Code provides that member states should also ensure that working conditions and environments are appropriate for pregnant and breastfeeding mothers, the provision is non-binding.230 _{However, as a result of the high prevalence of} HIV/Aids within the AU and SADC regions, these organisations have adopted measures for the overall protection of the health of society, and the support of those affected by HIV/Aids.231 The ILO’s Family Responsibilities Convention, 1981 and the EU’s 1996 Parental Leave

Directive, together with the Recommendation on Childcare, place great emphasis on childcare

services and facilities for working parents.232 _{The Recommendation on Childcare, although non-} binding, has been acknowledged as ‘a symbolic achievement’ in the reconciliation of work and

225 _{Ibid 2486.}

226 _{Ibid 2488; Olivier (note 2 above) 256.} 227 _{Olivier (note 2 above) 256.}

228 _{Jansen van Rensburg & Olivier (note 12 above) 633–634.} 229 _{Olivier & Kalula (note 4 above) 664; Olivier (note 2 above) 239.}

230 _{SADC Code (note 45 above) art 8; Dupper & Govindjee (note 52 above) 406.} 231 _{African Charter (note 12 above) art 18(1).}

care.233 _{The consolidation of paid parental leave with subsidised childcare facilitates a change in} the gendered assumptions attached to the division of care-giving responsibilities. It shifts the responsibility of care from the mother alone onto both parents, and places a duty on the government and employers to assist parents in this regard.234

The AU’s Women’s Protocol and the SADC’s Charter, Protocol and Code aim to promote the shared responsibility of care between parents in the interests of easing the burden of care placed on women as well as the promotion of fatherhood. The AU does place an overall emphasis on family.235 _{However, the provisions lack the clear promotion of childcare facilities in the} workplace and place no obligations on governments or employers to adopt such services, whereas the UNCRC and the AU’s ACRWC place positive duties on member states to adopt childcare services and facilities to provide assistance to working parents with family responsibilities.236 _{Flexible work arrangements also appear to be more of a priority for the EU} than any other international or regional organisation.237 _{The EU acknowledges that providing} flexibility in the workplace can increase the labour participation of women and will encourage women workers with family responsibilities to remain in the labour force while providing them with the means to manage their work and care-giving tasks.238

3.7 Conclusion

The commitment of the EU to the reconciliation of work and care is well reflected through its many directives. The provisions of the directives aim for the gender-neutral regulation of care- giving responsibilities.239 _{However, while it attempts to promote gender equality in the} workplace, the provisions which address the work–care conflict fail to redress the gendered

233 _{McGlynn (note 75 above) 225.} 234 _{Haas (note 162 above) 90.}

235 _{Jansen van Rensburg & Olivier (note 12 above) 633–634.}

236 _{Convention on the Rights of the Child (adopted 20 November 1989, entered into force 2 September 1990) 1577}

UNTS 3 (UNCRC) art 18(3); African Charter (note 12 above) art 20(2)(c); BD Memzur ‘The African Children’s Charter versus the UN Convention on the Rights of the Child: A zero-sum game?’ (2008) 23 SA Publiekreg/Public Law 1, 26.

237 _{Dancaster & Cohen (note 173 above) 35.} 238 _Ibid.

preference of motherhood over fatherhood.240 _{The EU commits itself to maternity protection but} does not fully engage in a commitment towards paternity leave and parental leave.241

The CEDAW and the AU have both adopted limited standards relating to the reconciliation of work and care.242 _{The provisions of the CEDAW and the AU are rather directed towards the} prevention of discrimination and the equal treatment of men and women in the workplace.243 _As such, these organisations address the reconciliation of work and care though measures which aim for gender equality in the workplace. The provisions of the SADC incorporate essential aspects of work–care reconciliation.244 _{However, these provisions are merely a framework and need} elaboration.245 _{It is clear that the AU and the SADC fall short of the minimum standards adopted} by the EU.

In light of the socio-economic and political factors prevalent in AU and SADC regions, the minimum standards must be developed to assist in the reconciliation of work and care for working parents with young children.246 _{The conflict between work and family responsibilities} remain an obstacle to the fully integrated labour-force participation of women. Measures must be taken to eliminate discrimination against women on the basis of family responsibilities, and to support a work–life balance. Regional standards are effective in identifying governmental trends and patterns for the adoption of laws which promote the reconciliation of work and care.247 However, the reconciliation of work and care will be achieved only through a clear commitment by the government to improve the rights of working parents with young children.248

240 _{Ibid 236.} 241 _Ibid.

242 _{Dancaster & Cohen (note 4 above) 2478.}

243 _{Dancaster & Baird (note 26 above) 26; Cohen (note 26 above) 19.} 244 _{Smit (note 1 above) 21.}

245 _{Nyenti & Mpedi (note 4 above) 273; M Olivier ‘Extension of Labour Law and Social Security Protection to the}

Informal Sector: Developing Country Perspectives, with Specific Reference to Southern Africa’ in R Blanpain (ed.) The Modernization of Labour Law and Industrial Relations in a Comparative Perspective (2009) 241, 256.

246 _{Olivier (note 245 above) 256; Smit (note 1 above) 32; Cohen (note 26 above) 31.} 247 _{Smit (note 1 above) 32.}