PERFIL PROFESIONAL DEL CERTIFICADO DE PROFESIONALIDAD Unidad de competencia 1

The ILO maternity protection standards provide employment protection during maternity leave and prevent discrimination against an employee on maternity leave.224 _{According to the ILO,} employment protection is the assurance that a woman will not lose her job during maternity leave or any period of leave following her return to work and is secure to return to her same position of employment with the same pay.225 _{Employees who transfer their employment to} another employer usually incur wage reductions. Therefore, national laws which provide the right to return to the same position or an equivalent position with the same pay are an essential aspect of maternity protection.226

The Organisation for Economic Co-operation and Development (OECD) released a report in collaboration with the ILO, the World Bank, and the International Monetary Fund, in preparation for the G20 Labour and Employment Ministerial Meeting in September 2014.227 _{The report} identified measures which are necessary to narrow the gender gaps in labour force participation which exist in G20 countries.228 _{These measures largely include efforts to provide maternity}

222 _{Maternity Protection Recommendation 2000 (note 55 above) art 10(5).}

223 _{ILO Maternity & Paternity at Work (note 57 above) 69; Dancaster (note 142 above) 181.} 224 _{ILO Maternity & Paternity at Work (note 57 above) 73–75.}

225 _{Ibid; Maternity Protection Convention 2000 (note 53 above), art 8.} 226 _{ILO Maternity & Paternity at Work (note 57 above) 77.}

227 _{OECD, ILO, IMF and WBG (2014): ‘Achieving stronger growth by promoting a more gender-balanced economy’.}

Report prepared for the G20 Labour & Employment Ministerial Meeting Melbourne, Australia, 10–11 September 2014 http://www.oecd.org, accessed on 21 October 2015. The OECD is an international organisation which recommends economic policy considerations regarding its 34 Member states and more than 70 non-member economies. The United Kingdom and Australia are Member states of the OECD. South African is involved with the OECD as a non-member. On 27 May 2007, the OECD Council adopted a resolution to effect co-operation with South Africa. The benefits of such a relationship are firstly; that South Africa receives access to OECD expertise and good policy practices and second, the OECD is allowed to broaden is policy perspective through the exposure to South African initiative. See http://www.oecd.org/southafrica/south-africa-and-oecd.htm.

228 _{The G20 countries are Argentina, Australia, Brazil, Canada, China, France, Germany, India, Indonesia, Italy,}

protection and are aimed at the reconciliation of work and care.229 _{The report stated that} measures had to be taken to eliminate the unequal treatment of men and women through the protection of all women against discrimination.230 _{Discrimination includes unequal treatment on} the grounds of gender, maternity, paternity, and family responsibilities. Furthermore, governments should provide employees, even those in informal employment, with paid maternity leave and paternity leave, as well as family-friendly workplace support such as breastfeeding opportunities and flexible working hours.231 _{The report indicates that these principles are set out} in the ILO conventions and efforts must be made by governments to give effect to the promotion of gender equality.232

2.3.6.1 Employment protection

Employment protection has been included in all three maternity protection conventions.233 _The Maternity Protection Conventions, 1919 and 1952, both state that it will not be lawful for an

employer to serve a notice of dismissal on an employee during maternity leave, or leave granted for illness resulting from the pregnancy or childbirth, and to serve a notice of dismissal at such a time that the notice would expire during the absence.234 _{Such a provision aims to ensure that an} employee cannot be dismissed while she is on maternity leave.235 _{However, these conventions} provide limited protection as they provide no security against dismissal during pregnancy and during the period of the employee’s return to work.236 _{The Maternity Protection Convention,} 2000 provides in article 8(1) that it is unlawful for the employer to terminate the employment of

a woman during her pregnancy, or absence on maternity leave, or during a period following her

229 _Ibid. 230 _Ibid. 231 _Ibid.

232 _{OECD, ILO, IMF and WBG (2014): ‘Achieving stronger growth by promoting a more gender-balanced economy’.}

Report prepared for the G20 Labour & Employment Ministerial Meeting Melbourne, Australia, 10–11 September 2014; 7–8 http://www.oecd.org/, accessed on 21 October 2015; Field, Bagraim & Rycroft (note 1 above) 36.

233 _{Maternity Protection Convention 1919 (note 60 above); Maternity Protection Convention 1952 (note 61 above);}

Maternity Protection Convention 2000 (note 53 above).

234 _{Maternity Protection Convention 1919 (note 60 above) art 4. Art 6 of Maternity Protection Convention}

(Revised), 1952 states that ‘[w]hile a woman is absent from work on maternity leave in accordance with the provisions of art 3 of this Convention, it shall not be lawful for her employer to give her notice of dismissal during such absence, or to give her notice of dismissal at such a time that the notice would expire during such absence’.

235 _{ILO Maternity & Paternity at Work (note 57 above) 76; Maternity Protection Convention 2000 (note 53 above).} 236 _{Dupper (note 210 above) 87.}

return to work.237 _{Therefore, the Maternity Protection Convention, 2000 is broader and extends} employment protection against dismissal to the period following her return to work. However, national legislation and regulations are permitted to determine the length of this period. Such protection against dismissal is often necessary where the employee is provided with additional leave for the purpose of breastfeeding a newborn baby.238

The ILO report has indicated that national law and regulatory measures of 56 countries provide protection against dismissal for any specified period during an employee’s pregnancy.239 _The Maternity Protection Convention, 2000 provides additional protection by stating that the burden

of proof rests on the employer to prove that the reasons for the dismissal are unrelated to pregnancy or childbirth and its consequences or breastfeeding.240 _{Placing the burden of proof on} the employer adds to the protection of the employee as it requires the employer to show that the dismissal was not maternity related.241 _{The Maternity Protection Convention, 2000 guarantees} women the right to return at the end of the maternity leave to the same position or an equivalent position which will be paid at the same rate.242

The Maternity Protection Recommendation, 1952 complements the provisions of the Maternity

Protection Convention, 1952 by setting out a longer period of employment protection and the

reasons which would result in a legitimate dismissal during the period of employment protection.243 _{Furthermore, the ILO provides maternity protection in the Termination of} Employment Convention 1982 (No. 158) which specifies that sex [sic], marital status, family

237 _{Art 8(1) of the Maternity Protection Convention 2000, states that ‘[i]t shall be unlawful for an employer to}

terminate the employment of a woman during her pregnancy or absence on leave referred to in arts 4 or 5 or during a period following her return to work to be prescribed by national laws or regulations, except on grounds unrelated to the pregnancy or birth of the child and its consequences or nursing. The burden of proving that the reasons for dismissal are unrelated to pregnancy or childbirth and its consequences or nursing shall rest on the employer’. Huysamen (note 50 above) 55.

238 _{ILO Maternity & Paternity at Work (note 57 above) 77.} 239 _Ibid.

240 _{Maternity Protection Convention 2000 (note 53 above) art 8(1).} 241 _{ILO Maternity & Paternity at Work (note 57 above) 79.}

242 _{Maternity Protection Convention 2000 (note 53 above) art 8(2).}

243 _{Maternity Protection Recommendation 1952 (note 142 above) par 4. Paragraph 4(2) states that ‘[a]mong the}

legitimate reasons for dismissal during the protected period to be defined by law should be included cases of serious fault on the part of the employed woman, shutting down of the undertaking or expiry of the contract of employment’. Matthias (note 60 above) 22.

responsibilities, pregnancy, and absence from work during maternity leave, among other issues, are not valid reasons for the termination of employment.244

2.3.6.2 Non-discrimination

The protection against discrimination in the workplace based on maternity ensures that women are not treated less favourably in the workplace by virtue of their gender or their functions as child-bearers or primary child-carers.245 _{Such protection is recognised as an essential element of} the ILO’s maternity protection standards which is necessary to prevent the various discriminatory practices related to pregnancy and maternity which still occur in the workplace.246 The discrimination takes the form of instances where the employer intentionally refuses to appoint young women based on the foreknowledge that the employee will probably require maternity protection at some point in her future career paths; or where pregnant or breastfeeding employees are treated less favourably than men or women who do not have children; or any other instances where women lose their jobs for reasons related to their pregnancy.247

The Maternity Protection Conventions, 1919 and 1952, do not include any provisions prohibiting discrimination against women in the workplace based on maternity. However, in 1958, the ILC adopted the Discrimination (Employment and Occupation) Convention, 1958 (No. 111),248 _which aims to eliminate discrimination in employment or occupation and promote equal treatment and opportunity in employment or occupation.249 _{While the definition of ‘discrimination’ in the} Discrimination (Employment and Occupation) Convention, 1958 includes any distinction,

exclusion or preference based on sex [sic], it does not specify pregnancy and maternity as grounds of discrimination.250 _{However, CEACR has stated that discrimination based on sex}

244 _{International Labour Conference (68th Session) Convention concerning Termination of Employment at the}

Initiative of the Employer (Geneva, adopted 22 June 1982, entry into force 23 November 1985) art 5(9).

245 _{ILO Maternity & Paternity at Work (note 57 above) 82.} 246 _Ibid.

247 _{Ibid 82–83.}

248 _{International Labour Conference (42nd Session) Convention concerning Discrimination in Respect of}

Employment and Occupation (Geneva, adopted 25 June 1958, entry into force15 June 1960) (Discrimination (Employment & Occupation) Convention, 1958).

249 _{Ibid art 1. The Discrimination (Employment & Occupation) Convention, 1958 is a one of eight ‘Fundamental’ ILO}

Conventions and has been ratified by 172 member states; Jansen van Rensburg & Olivier (note 5 above) 648; Dancaster & Baird (note 10 above) 26; Cohen (note 1 above) 29.

includes the grounds of marital status, pregnancy and childbirth as discrimination.251 _The Declaration on Equality of Opportunity and Treatment for Women Workers reaffirms the ILO

principle of non-discrimination and states that there shall be no discrimination against employees on the grounds of pregnancy and childbirth.252

The Maternity Protection Convention, 2000 is the only maternity protection convention to prohibit explicitly discrimination on the basis of pregnancy and maternity.253 _{It provides that} member states must adopt appropriate measures to ensure that maternity is not a source of discrimination in the workplace.254 _{The provision goes on to prohibit pregnancy testing at the} time of applying for employment.255 _{Furthermore, the Family Responsibilities Convention, 1981} states in the interest of promoting equal opportunity and treatment for men and women workers that member states shall make it an aim of national policy to enable workers with family responsibilities to engage in employment without being subjected to discrimination.256

2.3.7 Standards relating to health and safety of pregnant, postnatal, or