Maternity Protection in

International Law and Practice in

North-East Asia

The tables below were prepared as a resource for the recent IUF North East

Asia Maternity Protection workshop in Seoul, November 2005. The first table

summarises the most important points of ILO Convention 183 on Maternity

Protection (2000), by looking at seven key areas. The tables thereafter look at

each of these seven areas, and compare national legislation across the five

North East Asia areas which were represented at the workshop in Seoul.

None of these five countries has yet ratified ILO Convention 183.

These materials are intended as a reference for campaigning for ratification of

ILO Convention 183, or a training resource for trade unionists, or in collective

bargaining around the issue of maternity protection.

More information on maternity protection worldwide can be found at: the

Maternity Protection webpage of the Bureau of Workers' Activities (ACTRAV)

of the International Labour Organisation.

Seven Key Issue Areas In ILO Convention No. 183 on

Maternity Protection

Protection Convention 183

1. Scope (Who is

Protected?) All married and unmarried employed women

including those in atypical forms of work

2. Amount of Leave Not less than 14 weeks (remember: ILO

Recommendation 191 calls for 18 weeks)

Provision for 6 weeks compulsory postnatal

leave

3. Cash Benefits Two thirds of a woman's previous earnings

OR Equivalent payment

Benefits to be provided from social insurance

or public funds or determined by national law

and practice

4. Medical Benefits Prenatal, childbirth and postnatal care and

hospitalisation care when necessary

5. Health Protection Pregnant and nursing women shall not be

obliged to perform work that is assessed as

detrimental to the mother or child

6. Employment

Protection and

Discrimination

Unlawful for employer to dismiss a woman

during pregnancy, whilst on maternity leave or

nursing, unless the reasons are unrelated to

pregnancy or nursing, and the burden of proof

rests with the employer

Guaranteed right to return to the same

position or an equivalent position with equal pay

Protection against discrimination in

employment (eg hiring policies) on grounds of

maternity

Prohibition of pregnancy testing at

recruitment

7. Breaks For

Breastfeeding/Childcare Right to one or more daily breaks for

breastfeeding/lactation

Right to daily reduction of daily working hours

for breastfeeding

Breaks or reduction in hours counted as

working time and therefore paid.

1. Scope - Who is Covered?

Korea Labour Standards Act and Equal Employment Act both apply

to all persons working in any occupation in a business or

workplace for the purpose of earning wages

EXCEPT: domestic workers, day-labourers and ‘specially-

employed workers’ – eg those classed as freelance

contractors aren’t covered by LSA.

Japan Labour Standards Law: a worker is anyone employed at an

enterprise or place of business and receives wages,

without regard to the kind of occupation.

Mongolia Labour Law (1999): Any person working to receive wages

under a contract of employment.

Hong

Kong

SAR

Employment Ordinance:

A female employee under a continuous contract (min. of 4

consecutive weeks; at least 18 hours a week) is entitled to

maternity leave.

Paid leave only applicable to employees who have worked

under continuous contract for no less than 40 weeks and have

complied with regulations in full.

Taiwan Under the Labour Standards Act (revised 2001) a worker

means any person hired by an employer to do a job for which

wages are paid. All female workers are entitled to maternity

leave, however only those employed for 6 months

continuously are entitled to full paid leave; those with under 6

mths service receive half pay.

2. Amount of Leave

Amount of

Leave Limits/Conditions

Korea 90 days - 90 days with 60 paid days (45 days must be

given after delivery)

- total cost can be borne by social insurance

[LSA article 72] - to be phased in between 2006-

2008, starting with ‘priority workplaces’

- Between 30 & 90 days leave for women

miscarrying after 16 weeks of pregnancy,

depending on time of miscarriage

Japan 14 weeks - 6 weeks before childbirth (14 wks in cases of

multiple pregnancies (ie twins etc);

- 8 weeks after childbirth

Mongolia 120 days Both mothers and single fathers adopting new-

born children are also entitled to up to 60 days

leave

Hong

Kong

SAR

Ten weeks

leave is

provided

-

Taiwan 8 weeks Four weeks leave granted to those who miscarry

after the first 3 months, for miscarriage at

between 2 and 3 months’ pregnant 1 weeks’

leave is granted, and at less than two months

pregant, five days’ leave is granted.

3. Cash Benefits

Pay Who Pays?

Korea 100% of wages for 60

days Currently employer pays;

Total cost can be borne by social

insurance as of 2005 revisions,

but this is to be phased in over

three years (2006-2008) starting

with smaller workplaces

Japan Minimum 60% of wages.

No legislated requirement

that employer must pay

wages during leave; left to

negotiation at enterprise

level.

If a worker receives no wages

during leave, government

provides 60% of her average

monthly wage through State

Health Insurance Scheme.

Mongolia 70% of wages Government-funded social

insurance.

Hong

Kong

SAR

4/5 of normal wages for

pregnant employees. Employer to provide, but only to

workers already under continuous

contract for no less than 40

weeks, with a medical certificate

and notice of pregnancy served

accordance with regulatons.

Taiwan 100% of average wage for

workers employed longer

than 6 mths, half pay for

those in service less than

6 mths

Employer

4. Medical Benefits

Benefit Who Provides It?

Korea Mother-Child Health Act (not a labour-

related law) stipulates that:

“The head of city/county/urban district

shall take appropriate measures

necessary for the health care of

pregnant or nursing women (up to 6

months after delivery) and infants...

[which may include]: Diagnosis,

provision of medicine or materials for

medical treatment, treatments,

operations and other treatment,

accommodation in medical facilities,

nursing, and transfer.”

Intended as welfare

support for single

parents; but

implementation by

local governments is

patchy.

Japan Lump-sum birth and nursing grant of

300,000 yen National Health

Insurance Scheme

Mongolia Free health care Compulsory social

insurance scheme for

employees (mostly

regular employees).

Hong

Kong

SAR

None for mothers, however basic

health care (innoculations etc) is

provided free for infants under 1 year.

Employees must bear

all medical costs of

pregnancy and

childbirth, in a system

with limited public

health facilities.

Taiwan - 10-12 free consultations before

childbirth; 90% of delivery costs

- Infants under 18 months – free

consultations

- Labour Insurance premiums can also

be deferred during maternity leave for

up to 3 years

National Health

Insurance (95% of

Taiwanese are

covered by this

scheme)

5. Health protection

Protection Conditions/Sanctions

Korea Prohibition on use of

pregnant workers in

hazardous or dangerous

jobs ; also on night work and

overtime for pregnant

women

Women have the right to

request lighter duties;

women who have given birth

in the previous 12 mths

prohibited from working w.

hazardous substances or

doing overtime, night work

etc unless she so requests.

Fines apply for violations by

employers.

Japan Women have the right to

request lighter duties

Restrictions on overtime, or

enforced night work, or

hazardous or dangerous

work for pregant workers or

those who have given birth

in the previous 12 months.

Women must specifically request

exemptions from dangerous

work, overtime or night work.

Sanctions apply for violations, through labour inspection agency.

Mongolia Lighter duties, change of

duties from hazardous or

heavy work and/or reduction

working hours may be

arranged for pregnant or

nursing mothers.

A medical examination must be

arranged to prove the necessity

of changed or lighter duties.

Hong

Kong

SAR

Prohibition of assignment of

heavy, hazardous or harmful

work to pregnant workers. If

a worker normally does

such work, the employer

must transfer her within 14

days.

Submission of a medical

certificate is required, and the

employer may request an

examination by another doctor at

the cost of the employee.

Employers are liable for fines of

up to HK$50,000 (US$6,400) for

non-compliance.

Taiwan Prohibition of assignment of

heavy, hazardous or harmful

work to pregnant workers or

those who have given birth

in the previous 12 months;

Employers must supply

other jobs for workers who

so request it, and may not

reduce the wages of the

Any act violating such provisions

may result in prison term of no

more than one year, or fines not

in excess of NT$90, 000

(US$2,665).

worker as a result. Also

employers must agree to an

(unpaid) reduction of

working hours if a worker

requests it.

6. Employment Protection and Discrimination

Protection Sanction

Korea - Prohibition on direct or indirect

discrimination on grounds of sex,

marital status, pregnancy,

childbirth etc.

- Prohibition on dismissal during

mat. leave + 30 days; or during

parental leave;

- Legal right to return to same

position or position of equal wages

and status.

Criminal sanctions (fines

or imprisonment) apply

for violations

Japan Prohibitions on dismissal of worker

during maternity leave, whether

before or after childbirth, nor within

30 days after returning to work.

Sanctions would apply for

violations; monitored by

labour inspection agency.

Mongolia Prohibition on dismissal of a

pregnant woman or a woman with

a child under 3 years unless in

cases of bankruptcy or gross

misconduct (also applies to single

fathers with children under 3

years).

Minimal fines of between

15,000 and 30,000 tugriks

(US$12 and US$24) for

employing women or

children improperly.

Hong

Kong

SAR

Employers may not dismiss or

discriminate against a pregnant

employee in demotion or unfair

employment conditions between

the date that she is confirmed

pregnant by medical certificate, till

the date she returns to work after

maternity leave, except in cases of

gross misconduct, or if is on a

probationary period and is

dismissed for reasons other than

Fines of HK$100,000

(US$12,800) apply to

employers who do not

comply with these

regulations, as well as

wages in lieu of notice,

plus one month’s

additional wages plus 10

weeks maternity leave

pay.

her pregnancy. In all other cases it

is prohibited to dismiss pregnant

employees.

Taiwan Employers may not use marriage,

pregnancy, childbirth or child-

raising activities as reason for

termination or stipulate the above

as reasosn for workers being

forced to leave their jobs or apply

for leave without pay in any work

rules, contracts or collective

agreements.

Fines of no less than

NTD10,000 but no more

than NTD100,000 apply.

7. Breaks for Breastfeeding and Childcare Provisions

Provisions

Korea 2 x 30 minute break for breast feeding per day for workers with

children under 1 year of age, paid as time worked.

- Up to 365 days parental leave can be taken in total, including

maternity leave, with fixed allowances from employment

insurance fund, and the right to return to the same position or

a similar position receiving the same wages.

- Payment of subsidies to employers who have provided more

than 30 days chilcare leave and retained the employment of

those workers availing themselves of childcare leave, or

reinstatement of workers who had left due to pregnancy, birth

or childcare from between 6mths and 5 years of leaving the

job.

Japan Legal provision for childcare/breast-feeding breaks of 30

minutes twice per day for those with infants under 1 yr.

Mongolia Two hours nursing or breast feeding breaks per day for

mothers with babies under 6 mths (or twins under 12 mths)

and 1 hour for mothers with babies between 6 and 12 mths

old. This shall also apply to single fathers. Paid as time

worked.

Up to two years parental leave, unpaid, for mothers or single

fathers of children (including adopted children) under the age

of 3 years, with a right to return to previous job.

No provisions for subsidised or employer-provided child care

facilities.

Hong

Kong

SAR

No legal provision for breast-feeding breaks.

No parental leave.

No provisions for subsidised or employer-provided child care

facilities.

Taiwan 2 x 30 minute break for breast feeding per day for workers with

children under 1 year of age, paid as time worked.

Up to two years unpaid parental leave for parents of children

under the age of 3 years, with a right to reinstatement except

in cases of bankruptcy, sale or transfer of business, or

reduction in workforce where employees cannot be

reassigned.

Competent govt authorities at each level to provide reward

measures for employers re-hiring employees after leaving jobs

for reasons relating to family responsibilities.

Employers hiring more than 250 workers shall provide child

care facilities or suitable childcare measures, for which govt

subsidies can be provided.

Relevant Labour Laws:

Korea: Labour Standards Act (revised 2005) Labour Standards Act Enforcement Decree (last revised 2005) Equal Employment Act (revised 2005) Employment Insurance Act

Japan: Labour standards Law Law on Securing, Etc. of Equal Opportunity and Treatment between Men and Women in Employment Health Insurance Act and others. Mongolia: Labour Law (1999) Social Security Law Hong Kong SAR Employment Ordinance Sex Discrimination Ordinance Family responsibilities Discrimination Ordinance

Taiwan: Gender Equality in Employment Act (2001) Labour Standards Act (revised 2001) Labour Health and Safety Act (modified 2002)

END [2006.05.08]

Maternity Protection in International Law and Practice in North-East Asia

The tables below were prepared as a resource for the recent IUF North East

Asia Maternity Protection workshop in Seoul, November 2005. The first table

summarises the most important points of ILO Convention 183 on Maternity

Protection (2000), by looking at seven key areas. The tables thereafter look

at each of these seven areas, and compare national legislation across the five

North East Asia areas which were represented at the workshop in Seoul.

None of these five countries has yet ratified ILO Convention 183.

These materials are intended as a reference for campaigning for ratification

of ILO Convention 183, or a training resource for trade unionists, or in

collective bargaining around the issue of maternity protection.

More information on maternity protection worldwide can be found at: the

Maternity Protection webpage of the Bureau of Workers' Activities (ACTRAV)

of the International Labour Organisation.

Seven Key Issue Areas In ILO Convention No. 183 on Maternity Protection

Protection Convention 183

1. Scope (Who is

Protected?)

All married and unmarried employed women

including those in atypical forms of work

2. Amount of Leave Not less than 14 weeks (remember: ILO

Recommendation 191 calls for 18 weeks)

Provision for 6 weeks compulsory postnatal

leave

3. Cash Benefits Two thirds of a woman's previous earnings

OR Equivalent payment

Benefits to be provided from social insurance

or public funds or determined by national law

and practice

4. Medical Benefits Prenatal, childbirth and postnatal care and

hospitalisation care when necessary

5. Health Protection Pregnant and nursing women shall not be

obliged to perform work that is assessed as

detrimental to the mother or child

6. Employment

Protection and

Discrimination

Unlawful for employer to dismiss a woman

during pregnancy, whilst on maternity leave or

nursing, unless the reasons are unrelated to

pregnancy or nursing, and the burden of proof

rests with the employer

Guaranteed right to return to the same

position or an equivalent position with equal

pay

Protection against discrimination in

employment (eg hiring policies) on grounds of

maternity

Prohibition of pregnancy testing at

recruitment

7. Breaks For

Breastfeeding/Childcare

Right to one or more daily breaks for

breastfeeding/lactation

Right to daily reduction of daily working hours

for breastfeeding

Breaks or reduction in hours counted as

working time and therefore paid.

1. Scope - Who is Covered?

Korea Labour Standards Act and Equal Employment Act both apply

to all persons working in any occupation in a business or

workplace for the purpose of earning wages

EXCEPT: domestic workers, day-labourers and ‘specially-

employed workers’ – eg those classed as freelance

contractors aren’t covered by LSA.

Japan Labour Standards Law: a worker is anyone employed at an

enterprise or place of business and receives wages,

without regard to the kind of occupation.

Mongolia Labour Law (1999): Any person working to receive wages

under a contract of employment.

Hong

Kong SAR

Employment Ordinance:

A female employee under a continuous contract (min. of 4

consecutive weeks; at least 18 hours a week) is entitled to

maternity leave.

Paid leave only applicable to employees who have worked

under continuous contract for no less than 40 weeks and have

complied with regulations in full.

Taiwan Under the Labour Standards Act (revised 2001) a worker

means any person hired by an employer to do a job for which

wages are paid. All female workers are entitled to maternity

leave, however only those employed for 6 months

continuously are entitled to full paid leave; those with under 6

mths service receive half pay.

2. Amount of Leave

Amount of

Leave

Limits/Conditions

Korea 90 days - 90 days with 60 paid days (45 days must be

given after delivery)

- total cost can be borne by social insurance [LSA

article 72] - to be phased in between 2006-2008,

starting with ‘priority workplaces’

- Between 30 & 90 days leave for women

miscarrying after 16 weeks of pregnancy,

depending on time of miscarriage

Japan 14 weeks - 6 weeks before childbirth (14 wks in cases of

multiple pregnancies (ie twins etc);

- 8 weeks after childbirth

Mongolia 120 days Both mothers and single fathers adopting new-

born children are also entitled to up to 60 days

leave

Hong

Kong SAR

Ten weeks

leave is

provided

-

Taiwan 8 weeks Four weeks leave granted to those who miscarry

after the first 3 months, for miscarriage at

between 2 and 3 months’ pregnant 1 weeks’

leave is granted, and at less than two months

pregant, five days’ leave is granted.

3. Cash Benefits

Pay Who Pays?

Korea 100% of wages for 60 days Currently employer pays;

Total cost can be borne by social

insurance as of 2005 revisions,

but this is to be phased in over

three years (2006-2008) starting

with smaller workplaces

Japan Minimum 60% of wages.

No legislated requirement

that employer must pay

wages during leave; left to

negotiation at enterprise

level.

If a worker receives no wages

during leave, government

provides 60% of her average

monthly wage through State

Health Insurance Scheme.

Mongolia 70% of wages Government-funded social

insurance.

Hong

Kong SAR

4/5 of normal wages for

pregnant employees.

Employer to provide, but only to

workers already under

continuous contract for no less

than 40 weeks, with a medical

certificate and notice of

pregnancy served accordance

with regulatons.

Taiwan 100% of average wage for

workers employed longer

than 6 mths, half pay for

those in service less than 6

mths

Employer

4. Medical Benefits

Benefit Who Provides It?

Korea Mother-Child Health Act (not a labour-

related law) stipulates that:

“The head of city/county/urban

district shall take appropriate

measures necessary for the health

care of pregnant or nursing women

(up to 6 months after delivery) and

infants... [which may include]:

Diagnosis, provision of medicine or

materials for medical treatment,

treatments, operations and other

treatment, accommodation in medical

facilities, nursing, and transfer.”

Intended as welfare

support for single

parents; but

implementation by

local governments is

patchy.

Japan Lump-sum birth and nursing grant of

300,000 yen

National Health

Insurance Scheme

Mongolia Free health care Compulsory social

insurance scheme for

employees (mostly

regular employees).

Hong

Kong SAR

None for mothers, however basic

health care (innoculations etc) is

provided free for infants under 1 year.

Employees must bear

all medical costs of

pregnancy and

childbirth, in a system

with limited public

health facilities.

Taiwan - 10-12 free consultations before

childbirth; 90% of delivery costs

- Infants under 18 months – free

consultations

- Labour Insurance premiums can also

be deferred during maternity leave for

up to 3 years

National Health

Insurance (95% of

Taiwanese are

covered by this

scheme)

5. Health protection

Protection Conditions/Sanctions

Korea Prohibition on use of

pregnant workers in

hazardous or dangerous jobs

; also on night work and

overtime for pregnant

women

Women have the right to

request lighter duties;

women who have given birth

in the previous 12 mths

prohibited from working w.

hazardous substances or

doing overtime, night work

etc unless she so requests.

Fines apply for violations by

employers.

Japan Women have the right to

request lighter duties

Restrictions on overtime, or

enforced night work, or

hazardous or dangerous

work for pregant workers or

those who have given birth

in the previous 12 months.

Women must specifically

request exemptions from

dangerous work, overtime or

night work.

Sanctions apply for violations,

through labour inspection

agency.

Mongolia Lighter duties, change of

duties from hazardous or

heavy work and/or reduction

working hours may be

arranged for pregnant or

nursing mothers.

A medical examination must be

arranged to prove the necessity

of changed or lighter duties.

Hong

Kong SAR

Prohibition of assignment of

heavy, hazardous or harmful

work to pregnant workers. If

a worker normally does such

work, the employer must

transfer her within 14 days.

Submission of a medical

certificate is required, and the

employer may request an

examination by another doctor

at the cost of the employee.

Employers are liable for fines of

up to HK$50,000 (US$6,400) for

non-compliance.

Taiwan Prohibition of assignment of

heavy, hazardous or harmful

work to pregnant workers or

those who have given birth

in the previous 12 months;

Employers must supply

other jobs for workers who

so request it, and may not

reduce the wages of the

worker as a result. Also

employers must agree to an

(unpaid) reduction of

working hours if a worker

requests it.

Any act violating such

provisions may result in prison

term of no more than one year,

or fines not in excess of NT$90,

000 (US$2,665).

6. Employment Protection and Discrimination

Protection Sanction

Korea - Prohibition on direct or indirect

discrimination on grounds of sex,

marital status, pregnancy,

childbirth etc.

- Prohibition on dismissal during

Criminal sanctions (fines

or imprisonment) apply

for violations

mat. leave + 30 days; or during

parental leave;

- Legal right to return to same

position or position of equal

wages and status.

Japan Prohibitions on dismissal of

worker during maternity leave,

whether before or after childbirth,

nor within 30 days after returning

to work.

Sanctions would apply for

violations; monitored by

labour inspection agency.

Mongolia Prohibition on dismissal of a

pregnant woman or a woman with

a child under 3 years unless in

cases of bankruptcy or gross

misconduct (also applies to single

fathers with children under 3

years).

Minimal fines of between

15,000 and 30,000 tugriks

(US$12 and US$24) for

employing women or

children improperly.

Hong

Kong SAR

Employers may not dismiss or

discriminate against a pregnant

employee in demotion or unfair

employment conditions between

the date that she is confirmed

pregnant by medical certificate, till

the date she returns to work after

maternity leave, except in cases of

gross misconduct, or if is on a

probationary period and is

dismissed for reasons other than

her pregnancy. In all other cases it

is prohibited to dismiss pregnant

employees.

Fines of HK$100,000

(US$12,800) apply to

employers who do not

comply with these

regulations, as well as

wages in lieu of notice,

plus one month’s

additional wages plus 10

weeks maternity leave

pay.

Taiwan Employers may not use marriage,

pregnancy, childbirth or child-

raising activities as reason for

termination or stipulate the above

as reasosn for workers being

forced to leave their jobs or apply

for leave without pay in any work

rules, contracts or collective

Fines of no less than

NTD10,000 but no more

than NTD100,000 apply.

agreements.

7. Breaks for Breastfeeding and Childcare Provisions

Provisions

Korea 2 x 30 minute break for breast feeding per day for workers

with children under 1 year of age, paid as time worked.

- Up to 365 days parental leave can be taken in total, including

maternity leave, with fixed allowances from employment

insurance fund, and the right to return to the same position or

a similar position receiving the same wages.

- Payment of subsidies to employers who have provided more

than 30 days chilcare leave and retained the employment of

those workers availing themselves of childcare leave, or

reinstatement of workers who had left due to pregnancy,

birth or childcare from between 6mths and 5 years of leaving

the job.

Japan Legal provision for childcare/breast-feeding breaks of 30

minutes twice per day for those with infants under 1 yr.

Mongolia Two hours nursing or breast feeding breaks per day for

mothers with babies under 6 mths (or twins under 12 mths)

and 1 hour for mothers with babies between 6 and 12 mths

old. This shall also apply to single fathers. Paid as time

worked.

Up to two years parental leave, unpaid, for mothers or single

fathers of children (including adopted children) under the age

of 3 years, with a right to return to previous job.

No provisions for subsidised or employer-provided child care

facilities.

Hong

Kong SAR

No legal provision for breast-feeding breaks.

No parental leave.

No provisions for subsidised or employer-provided child care

facilities.

Taiwan 2 x 30 minute break for breast feeding per day for workers

with children under 1 year of age, paid as time worked.

Up to two years unpaid parental leave for parents of children

under the age of 3 years, with a right to reinstatement except

in cases of bankruptcy, sale or transfer of business, or

reduction in workforce where employees cannot be

reassigned.

Competent govt authorities at each level to provide reward

measures for employers re-hiring employees after leaving jobs

for reasons relating to family responsibilities.

Employers hiring more than 250 workers shall provide child

care facilities or suitable childcare measures, for which govt

subsidies can be provided.

Relevant Labour Laws:

Korea:

Labour Standards Act (revised 2005)

Labour Standards Act Enforcement Decree (last revised 2005)

Equal Employment Act (revised 2005)

Employment Insurance Act

Japan:

Labour standards Law

Law on Securing, Etc. of Equal Opportunity and Treatment between Men and

Women in Employment

Health Insurance Act and others.

Mongolia:

Labour Law (1999)

Social Security Law

Hong Kong SAR Employment Ordinance

Sex Discrimination Ordinance

Family responsibilities Discrimination Ordinance

Taiwan:

Gender Equality in Employment Act (2001)

Labour Standards Act (revised 2001)

Labour Health and Safety Act (modified 2002)

END

[2006.05.08]