Legislating on any matter and legislating specially on maternity and paternity at work needs a coherent work from the national legislators and these legislators as representatives of their people’s may not continue neither remaining silent and therefore not legislating at all on maternity and paternity protection at work, nor these national legislators may continue copying Labour Codes enacted by authorities from countries, cultures and economic realities completely opposite to their own countries.
The International Labour Organization ILO published on May the 13th 2014 its Global Report on Maternity and Paternity at Work, an issue closely related to gender discrimination, inequality and, high maternal and children mortality rates worldwide whose reduction is one of the U.N Millennium Development Goals, and although the ILO report recognizes that certain improvements have been made by Governments and Legislators from many countries, there is still a scandalous wide number of workers excluded from the scope of many Labor Codes or Social Security norms and therefore from Maternity and Paternity protection at work.
The ILO Report underlines not only the absence in many countries of Labour norms that protect female workers during pregnancy and after childbirth, but it also emphasizes that many categories of workers that are in their majority women, have been excluded from the scope of the Labour Codes, it is the case of Africa and Asia.
According to the ILO Global Report, “a large majority of women workers, representing around 830 million workers around the world, are still not adequately protected in case of maternity. Almost 80% of these workers are found in the countries in Africa and Asia. Globally, just over two-fifths of employed women (40.6%) enjoy a statutory right to maternity leave, while only 34.4% of the total benefit from mandatory coverage by law and thus are legally entitled to cash benefits as income replacement during their maternity leave, therefore, just over one-quarter(28.4%) of employed women (330 million) worldwide would receive maternity leave cash benefits in the event of childbirth.
In Africa and Asia, this represents less than 10% of women in employment. Different groups of workers are more frequently excluded from protection in law and in practice. This is often the case for the self-employed, domestic, agricultural, casual or temporary workers, migrants and indigenous peoples”[1]
The analysis of the ILO Report on Maternity and Paternity at work allows to deduce, that the dilemma goes then beyond the absence of norms. In Africa and Asia continents with less than 10% of female workers effectively protected and therefore entitled to paid maternity leave, it is usual to find Labour Codes that are just copies of oldest versions of European Labour Codes. The real problem is, legislating in a country means to enact norms that regulate society according to the needs and culture of this society and by copying norms -even those norms from more advanced and developed countries, instead of being a guarantee of success will probably lead the country to a failure.
This mistake is usually made and repeated time after time in African countries whose Labour Codes are usually a copy of oldest European Labour Codes. These European Labour Codes used to exclude certain categories of workers from their scope not because these workers did not deserve protection but enacting a further special legislation according to the needs of these special groups. At the contrary, many African countries have copied these Labour Codes with a scope that excludes many categories of workers, without enacting further special norms to protect these excluded categories and by this way they have leaved them unprotected.
The ILO Report establishes that “preventing discrimination is not only a question of legislation against discrimination. But also reducing the direct cost of maternity to the employer” It means that, even those countries that have enacted a Labour Code with a comprehensive scope, need to implement a Social Security System that carry on the duty of managing contributions and payments of cash benefits associated to maternity leave, otherwise employers will hardly hire female workers because of the “associated risk” of pregnancy that a female employee brings to her employer.
Africa is an agricultural country and more than 80% of agricultural workers worldwide are women. It has absolutely no sense, to copy in Africa or in any other agricultural country a Labour Code from another country that has excluded from its scope agricultural workers, domestic workers and temporary workers, if these categories of workers are the majority of workers within this country and those that need effective protection.
It is not a coincidence to find that countries with higher inequality and maternal and children mortality rates are usually the same countries without Labour Codes adequate to prevent discrimination at work and to protect female workers during pregnancy and after childbirth. Furthermore, countries with higher inequality, maternal and children mortality rates, are usually countries with a weak or inexistent Social Security System that administers the contributions and payments of maternity leave and other benefits for workers.
Legislating on any matter and legislating specially on maternity and paternity at work needs a coherent work from the national legislators and these legislators as representatives of their people’s may not continue neither remaining silent and therefore not legislating at all on maternity and paternity protection at work, nor these national legislators may continue copying Labour Codes enacted by authorities from countries, cultures and economic realities completely opposite to their own countries. NG0’s as representatives of civil society by excellence, play a key role in increasing the awareness of inhabitants and governments regarding the necessity of drafting and enacting legislation according to their own specific needs and characteristics.
Moreover, it is necessary to reevaluate the way technical cooperation is carried on regularly between developed and developing countries, and adopting the necessary steps to guarantee that projects – especially those that involve the adoption of laws, take into account the characteristics of the economy of the country that receives the technical inputs and not trying to copy or to implement a European Law or a Law designed in other country to solve problems and fulfill needs of another developing country. This is the real challenge, learning from countries that have implemented successfully Labour Codes and Social Security Systems but drafting laws according to economic, social and cultural specificities of each country.
To conclude, in order to effectively achieve one of the U.N Millennium Development goals such as the reduction of Maternal and children mortality, as well as the elimination of discrimination and inequality; governments and legislators have to take concrete steps to guarantee maternity and paternity protection at work and this include the enactment of comprehensive Labour Codes and the implementation of an effective Social Security System. NGO’s and civil society play also a key role in raising awareness regarding the need of legislation that protects effectively maternity and paternity at work and demanding from governments and legislators the adoption or reform of Labour Laws and Social Security Laws.
Finally, an important lesson to take into account when designing and implementing projects of technical cooperation, specially those regarding the adoption of new laws, that more than copying laws from developed countries, what is really needed by less developed countries in order to protect effectively maternity and paternity at work, is that governments and legislators draft and enact their own norms according to the culture, needs and most of all the economy of each country.
