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 1. Article 8 is replaced by the following: Amendment 1. Article 8 is replaced by the following: "Article 8 "Article 8 Maternity leave 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. 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. 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 ____________________________________________________________________________________________ COFACE aisbl – Londenstraat 17, Rue de Londres, B-1050 Brussels +32 2 511 41 79 +32 2 514 47 73 secretariat@coface-eu.org www.coface-eu.org 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. 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." 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 2 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: Amendment 2. Article 10 is replaced as follows: "Article 10 "Article 10 Prohibition of dismissal 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: 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. 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 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. 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 3. The Member States shall take the necessary measures to protect workers 3 within the meaning of Article 2 from the consequences of dismissal which is unlawful by virtue of points 1 and 2. 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." 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: Amendment 3. Article 11 is amended as follows: (a) The following point 1a is inserted: (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." "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: (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) 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: (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 "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 4 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." 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) The following point 5 is added: (d) Point 4 is replaced by the following: "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." "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 5 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. 6