Amendment proposals Maternity Leave - COFACE

Confédération des Organisations Familiales de l’Union européenne
Confederation of Family Organisations in the European Union
Brussels, 9 March 2009
Amendment proposals concerning the
Proposal for a Directive of the European Parliament and of the Council amending Council Directive
92/85/EEC on the introduction of measures to encourage improvements in the safety and health at
work of pregnant workers and workers who have recently given birth or are breastfeeding
Amendment 1
Proposal for a directive
Article 1, point 1
Text proposed by the Commission
Amendment
1. Article 8 is replaced by the following:
"Article 8
Maternity leave
1. Member States shall take the necessary
measures to ensure that workers within the
meaning of Article 2 are entitled to a
continuous period of maternity leave of at
least 18 weeks allocated before and/or after
confinement.
2. The maternity leave stipulated in
paragraph 1 shall include compulsory leave
of at least six weeks after childbirth. The
Member States shall take the necessary
measures to ensure that workers within the
meaning of Article 2 are entitled to choose
freely the time at which the non-compulsory
portion of the maternity leave is taken,
before or after childbirth.
1. Article 8 is replaced by the following:
"Article 8
Maternity leave
1. Member States shall take the necessary
measures to ensure that workers within the
meaning of Article 2 are entitled to a
continuous period of maternity leave of at
least 24 weeks allocated before and/or
after confinement.
2. The maternity leave stipulated in
paragraph 1 shall include compulsory leave
of at least six weeks after childbirth. The
Member States shall take the necessary
measures to ensure that workers within the
meaning of Article 2 are entitled to choose
freely the time at which the non-compulsory
portion of the maternity leave is taken,
before or after childbirth.
3. Member States shall take the
necessary measures to ensure that
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3. The prenatal portion of maternity leave
shall be extended by any period elapsing
between the presumed date and the actual
date of childbirth, without the remaining
portion of leave being reduced.
4. Member States shall take the necessary
measures to ensure that additional leave is
granted in the case of premature childbirth,
children hospitalised at birth, children with
disabilities and multiple births. The duration
of the additional leave should be
proportionate and allow the special needs of
the mother and the child/children to be
accommodated.
5. Member States shall ensure that any
period of sick leave due to illness or
complications arising out of pregnancy
occurring four weeks or more before
confinement does not impact on the duration
of maternity leave."
workers within the meaning of Article
2 have at all time during the noncompulsory
period of the leave the
reversible choice to resume work
earlier or to use their full leave, and to
take the non-compulsory portion of
the maternity leave on a full time basis
or on a part-time basis without
reduction of the duration of the leave.
Member States may provide for a
notice period no longer than four
weeks.
4. The prenatal portion of maternity leave
shall be extended by any period elapsing
between the presumed date and the actual
date of childbirth, without the remaining
portion of leave being reduced.
5. Member States shall take the necessary
measures to ensure that additional leave is
granted in the case of premature childbirth,
children hospitalised at birth, children with
disabilities, multiple births, and birth
occurring less than 18 months after
the previous birth. The duration of the
additional leave should be proportionate
and allow the special needs of the mother
and the child/children to be accommodated.
6. Member States shall ensure that any
period of sick leave due to illness or
complications arising out of pregnancy
occurring [Delete: four weeks or more]
before confinement does not impact on the
duration of maternity leave."
Justification
Extending the duration of maternity leave up to 24 weeks will improve the health and security of
mothers and children. The World Health Organisation and UNICEF recommend that all babies be
exclusively breastfed for six months (24 weeks).
It will also facilitate the management of human resources in companies. It is easier for businesses
to find a replacement for six months than for a shorter period. In the latter case, companies
would instead opt to burden other employees with additional work. In the current economic crisis,
this provides an opportunity for people to work.
Finally, when most EU countries are failing to respond to the needs for childcare facilities, it
provides enough time for parents to find one. Most countries have missed the targets for much
needed childcare provision – for 33% of children under three – that EU leaders set themselves at
Barcelona in 2002, according to a report issued by the European Commission in October 2008.
A maternity leave scheme offering the reversible choice to resume work earlier or use the full
leave, and to take the non-compulsory period of the leave on a full time basis or a part-time
basis, would allow women who wish to return earlier and smoothly to work to do so. It would
better meet the needs of the workers and would also benefit to employers. The part-time option
should have no negative impact on the duration of the leave which means that there should be a
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corresponding increase of the length of the period of leave to amount to 24 weeks of full leave. In
order to grant employers some security, these changes of regime could be subject to a notice
period no longer than four weeks.
Similar challenges should mean similar rights. The challenges arising from close births are similar
to those arising in the context of multiple births. Since the Commission proposal grants additional
leave for multiple births, additional leave should be granted for birth occurring less than 18
months after the previous one.
The exclusion of the last four weeks before confinement from the provision ensuring that period
of sick leave will not impact on the duration of maternity leave bears no justification given that
pregnant workers have the right to take their whole maternity leave after childbirth. Therefore
this exclusion should be removed.
Amendment 2
Proposal for a directive
Article 1, point 2
Text proposed by the Commission
2. Article 10 is replaced as follows:
"Article 10
Prohibition of dismissal
In order to guarantee that workers within
the meaning of Article 2 can exercise their
health and safety protection rights as
recognised under this Article:
1. The Member States shall take the
necessary measures to prohibit the dismissal
and all preparations for a dismissal of
workers within the meaning of Article 2
during the period from the beginning of their
pregnancy to the end of the maternity leave
provided for in Article 8(1), save in
exceptional cases not connected with their
condition which are permitted under national
legislation and/or practice and, where
applicable, provided that the competent
authority has given its consent.
2. If a worker within the meaning of Article 2
is dismissed during the period referred to in
point 1 the employer must cite duly
substantiated grounds for her dismissal in
writing. If the dismissal occurs within six
months following the end of maternity leave
as provided for in Article 8(1), the employer
must cite duly substantiated grounds for her
dismissal in writing at the request of the
worker concerned.
3. The Member States shall take the
necessary measures to protect workers
Amendment
2. Article 10 is replaced as follows:
"Article 10
Prohibition of dismissal
In order to guarantee that workers within
the meaning of Article 2 can exercise their
health and safety protection rights as
recognised under this Article:
1. The Member States shall take the
necessary measures to prohibit the dismissal
and all preparations for a dismissal of
workers within the meaning of Article 2
during the period from the beginning of their
pregnancy to the end of the maternity leave
provided for in Article 8(1), save in
exceptional cases not connected with their
condition duly substantiated in writing
and which are permitted under national
legislation and/or practice and, where
applicable, provided that the competent
authority has given its consent.
2. If a worker within the meaning of Article 2
is dismissed during the period referred to in
point 1 the employer must cite duly
substantiated grounds for her dismissal in
writing. If the dismissal occurs within 12
months following the end of maternity leave
as provided for in Article 8(1), the employer
must cite duly substantiated grounds for her
dismissal in writing [Delete: at the request
of the worker concerned].
3. The Member States shall take the
necessary measures to protect workers
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within the meaning of Article 2 from the
consequences of dismissal which is unlawful
by virtue of points 1 and 2.
4. Less favourable treatment of a woman
related to pregnancy or maternity leave
within the meaning of Article 8 shall
constitute discrimination within the meaning
of Directive 2002/73/EC, as recast by
Directive 2006/54/EC."
within the meaning of Article 2 from the
consequences of dismissal which is unlawful
by virtue of points 1 and 2.
4. Less favourable treatment of a woman
related to pregnancy or maternity leave
within the meaning of Article 8 shall
constitute discrimination within the meaning
of Directive 2002/73/EC, as recast by
Directive 2006/54/EC."
Justification
A six month period could be used by employers as a de-facto trial period to test the newly
returned worker’s ability to adapt to the (rapidly) changing working environment. Therefore, 12
months are necessary in order to avoid potential indirect discrimination banned by article 2.1.b of
Directive 2006/54/EC.
Justifying the substantiated grounds for dismissal in writing, regardless of whether the worker
concerned requests it, should be a standard practice of all contracts that are terminated during
the course of and before the end of the working contract period agreed initially between employer
and employee.
Amendment 3
Proposal for a directive
Article 1 – point 3
Text proposed by the Commission
3. Article 11 is amended as follows:
(a) The following point 1a is inserted:
"1a. workers, within the meaning of Article
2, who are excluded from work by their
employer who considers them not fit for
work without medical indication supplied by
the worker, shall, until the beginning of the
maternity leave in the sense of Article 8(2),
receive a payment equivalent to their full
salary."
(b) In point 2, the following point (c) is
added:
"(c) the right of workers within the meaning
of Article 2 to return to their jobs or to
equivalent posts on terms and conditions
that are no less favourable to them and to
benefit from any improvement in working
conditions to which they would have been
entitled during their absence;"
(c) Point 3 is replaced by the following:
"3. the allowance referred to in point 2(b)
shall be deemed adequate if it guarantees
income equivalent to the last monthly salary
or an average monthly salary, subject
Amendment
3. Article 11 is amended as follows:
(a) The following point 1a is inserted:
"1a. workers, within the meaning of Article
2, who are excluded from work by their
employer who considers them not fit for
work without medical indication supplied by
the worker, shall, until the beginning of the
maternity leave in the sense of Article 8(2),
receive a payment equivalent to their full
salary."
(b) In point 2, the following point (c) is
added:
"(c) the right of workers within the meaning
of Article 2 to return to their jobs or to
equivalent posts on terms and conditions
that are no less favourable to them and to
benefit from any improvement in working
conditions to which they would have been
entitled during their absence;"
(c) Point 3 is replaced by the following:
"3. the allowance referred to in point 2(b)
shall be deemed adequate if it guarantees
income equivalent to the last monthly full
salary [Delete: or an average monthly
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to any ceiling laid down under national
legislation. Such a ceiling may not be lower
than the allowance received by
workers within the meaning of Article
2 in the event of a break in activity on
grounds connected with the worker's
state of health. The Member States
may lay down the period over which
this average monthly salary is
calculated."
(d) The following point 5 is added:
"5. Member States shall take the measures
necessary to ensure that workers, within
the meaning of Article 2, may, during
maternity leave or when returning from
maternity leave, as provided for in Article 8,
request changes to their working hours and
patterns, and that employers shall be
obliged to consider such requests, taking
employers' and workers' needs into
account."
salary], subject to any ceiling laid down
under national legislation. Such a ceiling may
not be lower than 85% of the gross last
monthly salary."
(d) Point 4 is replaced by the following:
"4. Member States shall take the measures
necessary to ensure that workers, within the
meaning of Article 2, may, during maternity
leave or when returning from maternity
leave, as provided for in Article 8, request
changes to their working hours and patterns,
and that employers shall be obliged to
consider such requests, taking employers'
and workers' needs into account. An
employer may refuse such a request
only if the organisational
disadvantages for the employer are
disproportionately greater than the
benefit to the worker."
Justification
Concerning maternity leave allowance, a ceiling at the level of the allowance received by workers
in the event of a break in activity on grounds connected with the worker's state of health would
bring no improvement in comparison with directive 92/85/EEC. 85% of the gross last monthly
salary is an adequate level of ceiling towards guaranteeing that families will not face a risk of
poverty and social exclusion, especially lone parent families. Still in order to provide security for
workers, the allowance must be calculated on the basis of the last monthly full salary, not on the
basis of an average monthly salary.
Article 11, point 4 of Directive 92/85/EEC must be deleted. This article provides that Member
States could make entitlement to maternity leave allowance conditional upon the worker
concerned fulfilling some conditions of eligibility. The Commission proposal acknowledges that the
maternity leave is partly compulsory, (i.e. women must leave their job for health and safety
reason). The text cannot at the same time request women to leave their job and lose their
incomes when they do not fulfil national legislation conditions for paid maternity leave. These
women are trapped in an income void where they would not receive any allowance because they
do not fulfil the eligibility criteria but are not allowed to go back to work to make a living due to
health and safety reason. This article goes against the European common flexicurity principles, full
protection must benefit to all workers, including workers in atypical forms of employments (shortterm
contract workers, temporary workers, seasonal workers, etc.). It is particularly important for
young mothers who often do not have a lot of work experience.
As it stands, the article also goes against the European objective of mobility of workers, for
instance when female workers moving from one Member State to another (entitlement in one
Member State not being recognised in another), for the ones who just have taken a position (not
enough days in work but still have to give birth), and for the ones who transit from one
employment status to another (self employed to employee).
Concerning the workers’ right to request changes to their working hours and patterns, the
European Parliament’s position must be in line with its position on the revision of the working time
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directive as adopted on 17 December 2008 (Amendment 11 to the Council Common Position): the
employer cannot refuse such a request except if the burden is disproportionate.
Amendment 4
Proposal for a directive
Article 1 – point 3a, new
Text proposed by the Commission
Amendment
3a. The following article 11a is inserted:
"Article 11a
Return to work
Member States shall encourage
employers to provide for work
induction and training support for
workers returning to work after
maternity leave."
Justification
Return to work is a difficult period for workers on maternity leave. Adequate support must be
provided in terms of training and work induction.
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