The Constitution states that everyone is equal before the law and has the right to the equal protection and benefit of the law, and that everyone has the right of equal access to social security. It further prohibits discrimination on the grounds of pregnancy. The International Labour Organisation (ILO) calls for the extension of social protection, with priority consideration given to the “gradual extension of maternity protection to women in all sectors of activity and enterprises of all sizes, including women who are casual, temporary, part-time, sub-contract .. as well as self-employed workers” (Social Security: A new consensus, 2001).
In addition, the Convention on the Elimination of all forms of Discrimination Against Women (CEDAW) requires that states prevent discrimination against women on the grounds of maternity, and ensure their effective right to work by providing for “maternity leave with pay or comparable social benefits” (Art 11.2.b). Significant regional and international conventions require member states to provide for maternity benefits, comprising paid leave or leave with adequate social security benefits. Countries are required to give special attention to workers inadequately protected by social security, including those who are self-employed.
Despite these provisions and measures, it is apparent that in South Africa, there is inadequate provision for self-employed women, and certain categories of working women to access maternity benefits, such as paid maternity leave. The Basic Conditions of Employment Act and the Labour Relations Act provide for paid maternity leave for those falling under the specific definition of “employee”. Accordingly, women employees are able to take four months’ maternity leave, and draw maternity benefits from the Unemployment Insurance Fund (UIF).
However, self-employed women, such as informal traders, those running cooperatives, and professionals such as lawyers and consultants, do not fit the definition of “employee”, are not able to contribute to the UIF, and therefore not entitled to maternity benefits. Workers such as domestic and farm workers who draw maternity benefits from the UIF, and subsequently become unemployed, find that their UIF credits are diminished and funds available to them during unemployment reduced or exhausted. Private insurers do not cater for working women to contribute towards a fund for income replacement during maternity leave.
It is clear that the current system is discriminatory and unfair to a large proportion of working women – who have the same biological and financial needs as female employees, yet are denied benefits. There is an apparent blindness to women and the role they play in the economy, and women’s contribution to the economy through their own labour, running their own businesses, employing other people, supporting themselves and their own families. This blindness discriminates unfairly against working women, and impacts on their reproductive choices, their family income, and the sustainability of their businesses.
Accordingly, the Commission for Gender Equality and COSATU today jointly convened a consultative dialogue with a broad spectrum of stakeholders in this sector, to address this issue, and develop recommendations for our government to make good on its obligations to ensure that women have equal access to work, career advancement and social security. Key to these recommendations is the proposal to separate maternity benefits from UIF measures, and call for the establishment of a maternity benefits fund, to which women and men can contribute, and draw on.
Informed by legal research being conducted by the Legal Resources Centre, the CGE and COSATU will be joining forces with the ILO and the Department for Women, Children and People with Disabilities to develop policy recommendations and table these before decision-makers for enactment. Key components of the emerging campaign include a call for the ratification of the ILO Maternity Convention, union deliberation with employers, the consideration of test-case litigation, and extensive awareness-raising and mobilisation interventions.
Contact person:
Javu Baloyi
Cell: 083 579 3306
