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Lessons and Insights from the Struggle for Maternity Protection

Here's why we need to advocate for the ratification of the Maternity Protection Convention

 This article shares the lessons and insights from Labour Rights for Women Campaign team members; namely, national gender coordinators from the four participating federations (COSATUFEDUSANACTU and CONSAWU) and workers from all nine provinces on maternity protection. 

For the Labour Rights for Women Campaign, maternity protection is a critical element in ensuring equal opportunity for both men and women in the world of work. When women have access to maternity protection, they are able to combine their productive and reproductive roles, enabling them to compete in the productive sphere on an equal footing, writes Catherine Hein in Workplace Solutions for Childcare, an ILO publication. 

If we look at the sustainable development goal No.5 of the United Nations for 2015-2030 period, we will learn that the world has moved on. Gender equality is not only a fundamental human right but the necessary foundation for a more peaceful, prosperous and sustainable world.

As a campaign, we have learnt that perhaps we have been looking at this issue from a wrong angle because the reality on the ground (the workplace, community and collective agreements) doesn’t support how we have approached the debate on maternity protection. 

Maternity protection is a human right and a gender issue. The whole society needs to be concerned about this issue, and not just women. The government has a responsibility to its citizens. When women give birth, they are giving a gift to the nation and the government must support both parents to nurture and raise children. This is why the government must invest in maternity protection. We believe that, at a national level, workers’ and employers’ organisations could do more to encourage a shift away from employer-only liability schemes and set up social insurance or public fund to fund maternity protection.

Laws regulating maternity protection 

The South Africa Constitution has a strong commitment to the eradication of discrimination and entrenchment of the value of human dignity, equality and non-sexism. The equality clause in Section 9 prohibits the state and private persons from direct or indirect discrimination against the listed grounds, including pregnancy. The constitution also entrenches socio-economic rights, including the right to access healthcare, social security, reproductive health and social assistance.

Other pieces of legislation have been enacted to give effect to the constitutional rights and principles. 

The Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA) (Act No 4 of 2000) prohibits unfair discrimination directly or indirectly. 

The Employment Equity Act (EEA) (Act No 55 of 1998) advances equity by promoting equal opportunity and fair treatment in employment. It covers all employers, workers and job seekers, but excludes the National Defence Force, National Intelligence Agency and the South African Secret Service. The EEA goes beyond the listed grounds prohibited in the Constitution - family responsibility, political opinion and HIV status -  to include conscience, belief, birth or discrimination on any other arbitrary basis.

While South Africa has put in place progressive and expansive law dealing with equality in the workplace, the government’s approach to maternity protection is not equally expansive. Women workers don’t have resources to exercise their legislatively granted maternity protection rights. 

The Labour Relations Act (LRA) (ACT No 66 of 1995) gives effect to constitutional prohibitions against discrimination but is silent on the question of maternity benefits and provisions governing these benefits. These benefits are to be found in the Basic Conditions of Employment Act (BCEA) (Act No 75 of 1997)

The BCEA guarantees the right to four consecutive months of maternity leave. Although this leave is unpaid, the BCEA makes reference to the Unemployment Insurance Act (UIA) (Act No 63 of 2001), which provides benefits to registered contributors to the fund. Consequently, maternity benefits are obtained through the UIA. UIA excludes workers working less than 24 hours a month, public servants, foreign nationals working on contract, learnerships, workers who get a monthly state pension, workers who only earn commission and workers in the informal economy. The amount of benefit also depends on the credits that have built up in the fund. The difficulties in practice are many since the UIA benefit, usable for maternity leave, depends on the employer registering the employee and the credits available in the fund (UIA Act 63 of 2000).

The last decade has seen a big shift in how the informal economy is conceptualised from a “traditional economy that will wither away and die with modern, industrial growth” to an integrated part of the economy, which is “expanding with modern, industrial growth” and here to stay, states Eddie Webster, Asanda Benya, et al,  in a research report titled Making Visible the Invisible

According to the Quarterly Labour Force Survey, in the first quarter of 2012, there were 2.1 million people in South Africa active in the informal economy (excluding the agricultural sector), compared to 9.5 million in the non-agricultural formal sector. Approximately 60% are female and exist without any social protection (Quarterly Labour Force Survey, 4th Quarter of 2012).

In the Solidarity Centre 2014 publication, Still Searching for Transformative Equality, author Ziona Tanzer argues that maternity protection represents an important moment in the construction and renegotiation of gender. It is the place where governments’ commitment to equality is crucially tested and their conceptions of equality become pivotal; it brings to the fore the ways in which equality of opportunity or formal equality approaches are insufficient and obscure the ways in which men and women are situated differently. Is it substantive equality or different treatment that is called for? Yet, it also forces us to confront the point at which this different treatment crosses a fine line to become a form of counter-productive entrenched stereotype, argues Tanzer.

Maternity protection demands that we question the nature of our institutions and the ways in which they are not neutral, but gendered and call out for transformation.

The two core international laws regulating maternity protection are The Maternity Protection Convention (2000) and the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)(1979). 

Tanzer goes on to argue that “while both seek to regulate maternity protection, they differ in their application and conception of equality”. The Maternity Protection Convention allows women to abstain from the workplace for a limited period and return to the unaltered workforce. This approach does not set out to transform the world of work but rather seeks to accommodate women within the existing structures of work.

CEDAW, on the other hand, has a goal of fostering a conception of child-rearing as a joint responsibility of men and women. If taken to its logical conclusion, it would require a more radical restructuring of the workforce to reflect an egalitarian view on parenting and non-instrumental view of caregiving. This is the view that is shared by the Labour Rights for Women campaign.

CEDAW adopts a broad application which applies to both women and men. Its focus extends to issues of structural discrimination beyond the workplace but affecting the workplace such as dealing with stereotypes that see both women and men and not only women as caregivers of children. This discrimination approach comes at a cost as it is a considerably less robust approach to maternity protection and benefits.

While the Maternity Protection Convention addresses the lack of income during maternity leave so that a woman can maintain herself and her child, medical benefits, non-discrimination, employment protection and breastfeeding at the workplace are also included. All these measures address only the women and make having children a mother’s matter and places no responsibility on fathers or partners. This does not help transform the workplace and it also excludes women in the informal sector although it makes reference to atypical forms of dependent work.

From as early as the Decisions For Life campaign, young women in the services sector argued that pushing for parental rights and childcare facilities in the workplace will set the agenda for a broader gender equality debate in the union. This is because maternity continues to be a source of discrimination in employment and in access to employment. Pregnant women continue to lose their jobs, even those covered by protective legislation. The parental rights approach would also fundamentally change the way in which men and women regard their roles in society. This would furthermore do away with the perception that only men are breadwinners and therefore, should not be involved in housework and childcare and that women are child bearers and housework slaves, according to Lacom’s Sharing the load: The Struggle for Gender Equality, Parental Rights and Childcare

Patricia Nyman, the National Gender Coordinator of SACCAWU also argues that shifting emphasis from maternity to comprehensive parental rights agreements and not women’s rights only would lead to a denial of parental rights for working fathers. She says that a narrow maternity agreement entrenches the perception that women are the only carers of children.

A ground-breaking and comprehensive parental rights agreement was concluded with Pick n Pay in 1988 and with Makro in 2012. “It is therefore important to remember that workers are parents too”.

In November 2017, parliament passed an amendment to labour legislation drafted in line with the African Christian Democratic Party (ACDP) policy on family values focusing on parental leave and also providing for adoption and surrogacy leave. The Labour Laws Amendment Bill, proposed by ACDP MP Cheryllyn Dudley, aims to give fathers the opportunity to take paternity leave. The ACDP is of the opinion that, such a provision, would facilitate early bonding between fathers and their children and that stronger and healthier families, would be one of the many potential benefits for society as a whole.

There is no explicit entitlement to paternity leave under the LRA and in the BCEA a father can use family responsibility leave for this purpose. It is true that there are biological and health reasons why maternity protection is taken by women not men but, in the same breath, if we see parenthood as a joint responsibility of men and women, it is imperative to have fathers involved in childcare from the beginning.

Lessons from unions' struggle for maternity protection

One of the insights gained from the campaign is the importance of creating enabling laws, which will challenge the norm that men cannot be caregivers. We seek to ultimately influence the creation of a new culture. Three days is not adequate for fathers to spend with their newborn children if we want to alter social attitudes. The role of women in procreation should not be the basis for discrimination. The upbringing of children requires the sharing of responsibility between men and women and society as a whole. The sex-based segregation of reproduction and child-rearing roles are a social construct rather than the innate and immutable role of women. Maternity should be seen as a social function requiring that men be educated about sharing the reproductive role with women.

As a campaign, we have learnt that, if we introduce maternity protection as a developmental and parental rights issue affecting all working parents (same-sex partners, adoptive parents, surrogate and heterosexual parents), buy-in becomes easier as everyone can locate themselves in the debate. This has assisted us in strengthening our struggle for fair and equitable parental rights. This is also in line with our campaign team focusing on strengthening our bargaining agenda for gender equality.

The campaign is advocating for UIF to be delinked from a maternity fund as this disadvantages women. Women start withdrawing from the fund long before they actually become unemployed. There is also a call for employers or HR departments to assist women with their claims as this process can sometimes be long and complicated. The Department of Labour needs to allow women to apply at least a month before the baby is born. Currently, you can only apply after receiving an unbridged birth certificate (UIA 63 of 2001).

In South Africa, we do not have stand-alone maternity protection legislation. Even though our legislation refers to four consecutive months of maternity leave, it is not paid. 

We need maternity protection legislation that will include the following elements: 

  • Job Security 
  • Parental leave – maternity and paternity 
  • Social security 
  • Right to return to work 
  • Antenatal and post-natal care 
  • Breastfeeding provisions 
  • Childcare 
  • Health and safety 
  • Career break
  • Adoption leave 
  • Assistance to deal with stillbirths, miscarriages and abortions

All women workers should have access to maternity protection benefits, including self-employed workers, those in the informal economy, migrant workers and sex workers. The vulnerability of certain categories of workers in the vulnerable sector like domestic and farm workers, mine workers, hospitality sector workers, unregistered workers, and BCEA-excluded employees namely part-time, casual, temporary, contract workers, or categories of public service workers must also be addressed. As a campaign, we believe there should be no such exclusions. We should have one piece of legislation that will cover all working women regardless of which sector one is working in.

Provinces are unanimous that maternity protection should be paid and should be extended to six months. This is in line with the Department of Health’s call to exclusively breastfeed for six months. But this should not stop beneficiaries who want to return to work before six months to exercise their discretion. However, a woman cannot return to work earlier than six weeks after the birth of a child. As this may not necessarily balance with one’s career progression, the legislation proposed must also be flexible enough to allow the other parent to take over maternity leave in an event where the other parent cannot continue with the maternity leave for whatever reason.

Returning to work while still breastfeeding is a critical challenge for mothers and it is one of the main reasons that working women stop breastfeeding. For many women, the lack of workplace support for breastfeeding makes working incompatible with breastfeeding. The ability to continue breastfeeding on return to work is another element of maternity protection.

The Convention reaffirms a woman’s right to breastfeeding breaks during working hours, and also provides that this time may be given as a reduction in working hours. In the Convention, the term “breastfeeding” is used to make clear that the break or reduction in working time is provided for the purpose of feeding the baby at the breast or expressing breastmilk for later use. It does not include bottle-feeding or simply caring for the child which is an activity which someone other than the mother might perform. Breastfeeding breaks (or the reduction in hours) are to be counted as working time and paid as such.

Childcare has also emerged as an important issue. As the face of the workplace changes, many more women are in full-time employment. Many more women also work in the informal sector. And many more women are developing their own career paths. 

In South Africa especially, many more women are also becoming the primary wage earners in their families, and many are also single parents. This means that changes in childcare policy and practice in the workplace are necessary. If parents, especially women, are to be productive members of the workforce whose contribution is taken seriously, they need a functioning system of childcare in the workplace to adequately support them.

Our collective agreements are weak when it comes to advancing gender equality and improving conditions of working women in the workplace. One of the strategies identified to strengthen our collective bargaining is to encourage women to locate themselves within collective bargaining by actively participating in bargaining forums and also being available
to be nominated to become negotiators.

The ratification of Convention 183 needs to be seen against the backdrop of the African context. Africa has high maternal and infant mortality and morbidity which are worsened by HIV/AIDS. Poverty and social vulnerability are widespread due to a loss of income related to maternity as well as health risks. 

Child malnutrition is also critical (COSATU position paper on maternity protection, 2016). Convention 183 is one of the oldest conventions, yet only three countries have ratified it. The majority of our leaders don’t see this issue as a priority and there is no political will to ratify it. If we do not lobby for ratification, it will take us another hundred years to extend social protection to all working women.

Our government is a signatory to CEDAW, yet we are seeing a manifestation of discrimination. As trade unions, we are looking to employers to contribute to maternity protection. Is this feasible if the formal economy is less than 20%? Who is the employer when the majority of the women are working in the informal economy? Indeed, we have been looking at this issue from a wrong angle because the reality on the ground does not support how we have been approaching the debate on maternity protection. Maternity protection is a human right, women’s right and a societal issue. Governments have a responsibility to their citizens and maternity protection is one of them. 

If we want to have comprehensive maternity protection where all working parents benefit, we need to use both national and international legislation as it will strengthen our call for gender equality.

** This article is extracted from LRS flagship publication Bargaining Indicators (2017 issue)

*** Bargaining Indicators is an annual publication of the Labour Research Service. The publication provides trade union negotiators with economic indicators and benchmarks that are useful for collective bargaining, especially for developing a bargaining strategy for the year ahead.