UNIDAD FORMATIVA 1

The ILO, as an international organisation, has extensive provisions providing rights and protections which support the reconciliation of work and care. In particular, the Maternity

Protection Convention, 2000 and the Family Responsibilities Convention, 1981 directly call for

the adoption of mechanisms to regulate the work–care conflicts.306 _{The ILO’s commitment to} maternity protection began in 1919 with the introduction of the Maternity Protection

Convention, 1919. The convention has been revised twice, resulting in the Maternity Protection Convention, 2000. This convention has made significant progress in its provisions. It broadens

the scope of maternity protection to a wider range of women employees and has limited the statutory eligibility requirements to be met in claiming maternity leave. It extends the duration of maternity leave to fourteen weeks and provides for additional leave from work due to illness and complications arising out of childbirth.307 _{The convention prescribes cash benefits at the amount} of at least two-thirds of the women’s previous earnings. Employment protection is extended to pregnant and antenatal employees, and it expressly prohibits discrimination on the basis of pregnancy and maternity. The Maternity Protection Convention, 2000 is commended for its exclusive commitment towards the protection of pregnancy and maternity.308

The exclusion of ILO standards relating to paternity and parental leave indicates that more initiative must be taken to ensure the participation of men in the reconciliation of work and care. Paternity and parental leave are encouraged only, through ILO recommendations which are non-

303 _{UNCRC (note 299 above), art 18(2); Behari (note 57 above) 359.} 304 _{UNCRC (note 299 above) art 18(3).}

305 _{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; Behari (note 55 above) 359.

306 _{Dancaster & Baird (note 10 above) 26.} 307 _{Rickard (note 53 above) 1504.} 308 _Ibid.

binding and act as guidelines. Therefore, member states are not made to commit themselves to the adoption of statutory paternity or parental leave. Paternity leave or non-transferable parental leave must be recognised as a mechanism for the promotion of equal sharing of family responsibilities between parents, thereby influencing gender equality in the workplace.309 _The ILO Resolution on Gender Equality at the Heart of Decent Work establishes that while there has been progress on the issue of gender equality in the workplace, greater progress needs to be made specifically on the issue of work–care reconciliation.310 _{The Resolution on Gender} Equality at the Heart of Decent Work draws attention to the low number of ratifications of the Maternity Protection Convention, 2000, and calls for flexible work arrangements to be

implemented to promote gender equality.311

The issue with ILO minimum standards of maternity and paternity protection arises in their effective implementation. The supervisory procedures of the ILO are effective only if member states agree to comply and make the necessary adjustments to meet the standards. However, enforcement procedures become more difficult should the member states fail to comply with the standards of the ILO.312 _{Statistically, the ILO report has indicated that workplace inequality may} be improving. Nevertheless, a failure to provide adequate maternity protection is still a global issue.313

2.8 Conclusion

The strengths of the ILO go as far as member states are willing to adopt their standards.314 _The failure to ratify conventions means that the standards of the convention will not have a strong impact on the legal terms and conditions of employment within the domestic laws of that member state.315 _{Upon ratification, the ILO conventions are influential on national laws.} Recommendations may be made in Parliament to propose changes to national laws which are inconsistent with ILO standards. However, the efficacy of ILO conventions is related to the

309 _{ILO Maternity & Paternity at Work (note 57 above).}

310_{Resolution on Gender Equality at the heart of Decent Work (note 50 above).} 311 _Ibid.

312 _{Korda & Pennings (note 20 above) 151.} 313 _{Rickard (note 53 above) 1504.}

314 _{Ibid 1505–1508.}

extent of ratifications by member states.316 _{For instance, the Maternity Protection Convention,} 2000 is commended for its dedication in its entirety to the international maternity protection of

women, both during and after pregnancy.317 _{However, the convention has been ratified by only} 30 member states, whereas the Maternity Protection Convention, 1952 has been ratified by 41 member states.318 _{A further weakness of the ILO maternity protection conventions is that the} conventions consist of minimum standards which may already exist in domestic laws of both ratifying and non-ratifying countries.319

International labour standards also leave space for national governments to develop according to the diversity of their economy, social security systems, and individual legal approaches. This is in line with the ILC ‘principle of progressivity’.320 _{The principle of progressivity forms part of} the UN human rights framework. The ICESCR sets out the principle of progressive realisation as a core provision.321 _{The ICESCR provides that State Parties must undertake measures to ensure} the progressive realisation of the rights recognised by the ICESCR through ‘all appropriate means, including particularly the adoption of legislative measures’.322 _{It goes on to call for} international assistance regarding the effective and progressive implementation of the

Covenant.323 _{The principle of progressivity appeals firstly for progressivity through greater} implementation of the social protections aimed at maximising benefits afforded, and the persons covered. Second, it allows for the development towards higher levels of protection by increasing the ranges of circumstances and benefits that are included in the protection as well as the scope of persons covered by the protection.324

However, it must be noted that while South Africa has signed the ICESCR, it has not yet been ratified.325 _{The effect of signing the ICESCR without ratifying it still has significant} implications. The signature compels South Africa to refrain from adopting measures which

316 _Ibid.

317 _{Rickard (note 53 above) 1504.} 318 _Ibid.

319 _Ibid.

320 _{Addati (note 47 above) 73.}

321 _{Jansen van Rensburg & Olivier (note 5 above) 643.} 322 _{ICESCR (note 293 above) art 2.}

323 _{ICESCR (note 293 above) art 22; Kulke & Saint-Pierre Guilbault (note 130 above) 101.} 324 _{Ibid 100.}

would defeat its objectives, and to undertake a review of all applicable national laws and policies to ensure compliance with the ICESCR upon ratification.326 _{Despite the call for progressive} implementation, neither the ICESCR nor any other human rights instrument set out guidelines as to how the progressive realisation of social security may be implemented, until the adoption of the Social Protection Floors Recommendation, 2012.327

The Social Protection Floors Recommendation, 2012 makes provision for the principle of progressivity and states that member states should implement strategies aimed at extending social security so that higher levels of social security may be ensured in an attempt to widen the range of employees.328 _{It also states that members should apply the principle of ‘progressive} realisation’ by setting targets and timeframes for the implementation of social security measures.329 _{Progressivity acknowledges that the different challenges within the national} frameworks of each member state may lead to limitations. Nevertheless, movement must be made towards the objective of universal social security protection. Therefore, the Social

Protection Floors Recommendation, 2012 makes the progressive realisation of universal

coverage of social security a priority in terms of the international human rights framework.330 Globally, standards effecting the reconciliation of work and care with specific focus on maternity protection have gradually developed over the years.331 _{The ILO has been recognised for} introducing many influential policies, programmes and initiatives aimed towards the reconciliation of work and care.332 _{According to the Constitution, the consideration of} international standards is mandatory in the interpretation of constitutional rights. International standards indicate a benchmark for the minimum standards that must be provided to employees with family responsibilities.333 _{Despite national undertakings to consider international laws, the} initiatives of international organisations cannot achieve their objectives without the support and

326 _{Jansen van Rensburg & Olivier (note 5 above) 635–636.} 327 _{Kulke & Saint-Pierre Guilbault (note 130 above) 101.}

328 _{Social Protection Floors Recommendation, 2012 (note 66 above) par 1(b).}

329 _{Social Protection Floors Recommendation, 2012 (note 66 above) par 3(g), 14(e), 19.} 330 _{Kulke & Saint-Pierre Guilbault (note 130 above) 101.}

331 _{ILO Maternity & Paternity at Work (note 57 above) 115.}

332 _{Cohen (note 1 above) 31; Dancaster & Cohen (note 1 above) 2477.} 333 _{Jansen van Rensburg & Olivier (note 5 above) 649.}

commitment of national governments to adopt and effectively implement minimum standards through their domestic laws, policies, or collective agreements.334

334 _{Cohen (note 1 above) 34; C McGlynn ‘Work, family and parenthood: The European Union agenda’ in J Conaghan}