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E) Social Charter Monographs
Social Charter Monographs describe the case-law of the European Committee of Social Rights by looking at the various supervision cycles. Social Charter Monograph No. 2 is a study of women in the working world, which covers equality between women and men in the employment field, the protection of working women who become mothers, and special protection for other working women in general. It is based upon an examination of the relevant rules laid down by the Charter in the light of the case-law (supervision cycles) of the Committee of Independent Experts. This Monograph was prepared as a contribution to the Fourth World Conference on Women, organised by the United Nations (Beijing, 5-15 September 1995). Included in this compilation are only the parts of the monograph that deal with reproductive and sexual health issues (footnotes have been omitted). II. Special protection for working women who become mothers 72. The right of working women to protection is enshrined in Article 8 of the Charter. The first three paragraphs relate to the protection granted in the event of maternity,' namely: maternity leave, with appropriate payments (B); prohibition of dismissal during a set period (C) and time off for nursing mothers (D). Each aspect of this protection deserves to be dealt with separately, but certain rules are common to these protective provision as a whole (A). A - The common rules applying to every aspect of this protection 73. These apply to the beneficiaries of this protection and to the requirement for legislation. a. Beneficiaries of this protection 74. Three categories have been defined: women wage-earners; all working women who become mothers; all working women who become mothers in the light of the Appendix to the Charter. 1. Women wage-earners 75. In the very first supervision cycle, "Article 8 was interpreted by the Committee as applying solely to women in paid employment, and not to self-employed women". It explained the reasons for this: "This interpretation is based on the following: - regarding all four paragraphs making up the article, on the expression 'employed women' used in the English text of the first sentence of the article, - regarding more especially paragraphs 2 and 4, on the use in their text , of the word 'employer' or 'employment', which is fairly conclusive". This interpretation has always been confirmed. 2. All employed women who become mothers 76. It is the definition of beneficiaries which poses most problems for the Contracting Parties, for certain categories of employed women are frequently excluded from one or the other (or from all) of the protective provisions relating to maternity. The Committee did not, at the outset, expressly state this principle, but as Article 8 is not subject to the provisions of Article 33, 7 the Committee has since the very first supervision cycle referred to "expectant mothers in paid employment". The Committee has given clear indications subsequently that no exception can be allowed; this is stated in every volume of Conclusions. 77. The Committee has felt the need to emphasise in this context one difference between the Charter and ILO Convention No. 103 (maternity protection) , Article 7 of which allows a number of exceptions: the Committee criticised one state which excluded from the application of Article 8 para. 2 household workers and domestic employees, commenting that: "in order to justify these shortcomings, the Government again referred to ILO Convention No. 103, which is included in the form after this provision, in justification of its attitude. The Committee was unable to accept this argument since the Convention is referred to with the sole aim of helping governments to prepare their biennial reports without any suggestion that the personal and material scope of Convention No. 103 is the same as the Charter's. Moreover, the text of Article 8 clearly demonstrates that no limitation of the personal scope of its provisions is admissible and that its paragraph 2 is not among the provisions in the Charter in respect of which Article 33 authorises some of the beneficiaries to be excluded." Consequently, when a state which has accepted Article 8 has taken advantage of the opportunities for permitted exceptions when ratifying ILO Convention No. 103, the Committee makes sure that the working women thus excluded do enjoy protection in line with that guaranteed by the Charter. 78. The categories most frequently excluded are household workers and domestic employees, but exclusion may affect other categories, or be linked to length of service, etc. The first procedure relating to certain provisions which have not been accepted related inter alia to paragraphs 1 and 2 of Article 8. It was found that the main difficulty experienced by states in accepting these provisions was the exclusion of various categories of working women. The Committee strictly insists that there be no exceptions whatsoever and allows no exclusion, even if the number of women concerned is very small. Furthermore, as the payments intended to enable women to take maternity leave are very often social security benefits, the Committee has turned its attention to the conditions on which maternity benefits are granted and raised a general question on this subject under Article 8 para. 1: "The Committee asked all states which have accepted Article 8 para. 1 to indicate in their next report under this provision if the payment of maternity benefits is subject to conditions as to the length of affiliation to a social security insurance scheme, a specified period of occupational activity or of employment with one or more employers (indicating whether periods of unemployment are counted as working time for this purpose) and/or a specified salary level".
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