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INDUSTRIAL RELATIONS REFORM ACT 1993 No. 98 of 1993 - SCHEDULE 1
SCHEDULE 1
SCHEDULES TO BE ADDED AT THE END OF THE PRINCIPAL ACT
SCHEDULE 5 Section 4
CONVENTION CONCERNING MINIMUM WAGE FIXING, WITH SPECIAL REFERENCE TO
DEVELOPING COUNTRIES
The General Conference of the International Labour Organisation, Having been
convened at Geneva by the Governing Body of the International Labour Office,
and having met in its Fifty-fourth Session on 3 June 1970, and Noting the
terms of the Minimum Wage-Fixing Machinery Convention, 1928, and the Equal
Remuneration Convention, 1951, which have been widely ratified, as well as of
the Minimum Wage Fixing Machinery (Agriculture) Convention, 1951, and
Considering that these Conventions have played a valuable part in protecting
disadvantaged groups of wage earners, and Considering that the time has come
to adopt a further instrument complementing these Conventions and providing
protection for wage earners against unduly low wages, which, while of general
application, pays special regard to the needs of developing countries, and
Having decided upon the adoption of certain proposals with regard to minimum
wage fixing machinery and related problems, with special reference to
developing countries, which is the fifth item on the agenda of the session,
and Having determined that these proposals shall take the form of an
international Convention, dopts this twenty-second day of June of the year one
thousand nine hundred and seventy, the following Convention, which may be
cited as the Minimum Wage Fixing Convention, 1970:
Article 1
1. Each Member of the International Labour Organisation which ratifies this
Convention undertakes to establish a system of minimum wages which covers all
groups of wage earners whose terms of employment are such that coverage would
be appropriate.
2. The competent authority in each country shall, in agreement or after full
consultation with the representative organisations of employers and workers
concerned, where such exist, determine the groups of wage earners to be
covered.
3. Each Member which ratifies this Convention shall list in the first report
on the application of the Convention submitted under article 22 of the
Constitution of the International Labour Organisation any groups of wage
earners which may not have been covered in pursuance of this Article, giving
the reasons for not covering them, and shall state in subsequent reports the
position of its law and practice in respect of the groups not covered, and the
extent to which effect has been given or is proposed to be given to the
Convention in respect of such groups.
Article 2
1. Minimum wages shall have the force of law and shall not be subject to
abatement, and failure to apply them shall make the person or persons
concerned liable to appropriate penal or other sanctions.
2. Subject to the provisions of paragraph 1 of this Article, the freedom of
collective bargaining shall be fully respected.
Article 3 The elements to be taken into consideration in determining the level
of minimum wages shall, so far as possible and appropriate in relation to
national practice and conditions, include-
(a) the needs of workers and their families, taking into account the
general level of wages in the country, the cost of living, social
security benefits, and the relative living standards of other social
groups;
(b) economic factors, including the requirements of economic development,
levels of productivity and the desirability of attaining and
maintaining a high level of employment.
Article 4
1. Each Member which ratifies this Convention shall create and/or maintain
machinery adapted to national conditions and requirements whereby minimum
wages for groups of wage earners covered in pursuance of Article 1 hereof can
be fixed and adjusted from time to time.
2. Provision shall be made, in connection with the establishment, operation
and modification of such machinery, for full consultation with representative
organisations of employers and workers concerned or, where no such
organisations exist, representatives of employers and workers concerned.
3. Wherever it is appropriate to the nature of the minimum wage fixing
machinery, provision shall also be made for the direct participation in its
operation of-
(a) representatives of organisations of employers and workers concerned
or, where no such organisations exist, representatives of employers
and workers concerned, on a basis of equality;
(b) persons having recognised competence for representing the general
interests of the country and appointed after full consultation with
representative organisations of employers and workers concerned, where
such organisations exist and such consultation is in accordance with
national law or practice.
Article 5
Appropriate measures, such as adequate inspection reinforced by other
necessary measures, shall be taken to ensure the effective application of all
provisions relating to minimum wages.
Article 6
This Convention shall not be regarded as revising any existing Convention.
Article 7
The formal ratifications of this Convention shall be communicated to the
Director-General of the International Labour Office for registration.
Article 8
1. This Convention shall be binding only upon those Members of the
International Labour Organisation whose ratifications have been registered
with the Director-General.
2. It shall come into force twelve months after the date on which the
ratifications of two Members have been registered with the Director- General.
3. Thereafter, this Convention shall come into force for any Member twelve
months after the date on which its ratification has been registered.
Article 9
1. A Member which has ratified this Convention may denounce it after the
expiration of ten years from the date on which the Convention first comes into
force, by an act communicated to the Director-General of the International
Labour Office for registration. Such denunciation shall not take effect until
one year after the date on which it is registered.
2. Each Member which has ratified this Convention and which does not, within
the year following the expiration of the period of ten years mentioned in the
preceding paragraph, exercise the right of denunciation provided for in this
Article, will be bound for another period of ten years and, thereafter, may
denounce this Convention at the expiration of each period of ten years under
the terms provided for in this Article.
Article 10
1. The Director-General of the International Labour Office shall notify all
Members of the International Labour Organisation of the registration of all
ratifications and denunciations communicated to him by the Members of the
Organisation.
2. When notifying the Members of the Organisation of the registration of the
second ratification communicated to him, the Director-General shall draw the
attention of the Members of the Organisation to the date upon which the
Convention will come into force.
Article 11
The Director-General of the International Labour Office shall communicate to
the Secretary-General of the United Nations for registration in accordance
with Article 102 of the Charter of the United Nations full particulars of all
ratifications and acts of denunciation registered by him in accordance with
the provisions of the preceding Articles.
Article 12
At such times as it may consider necessary the Governing Body of the
International Labour Office shall present to the General Conference a report
on the working of this Convention and shall examine the desirability of
placing on the agenda of the Conference the question of its revision in whole
or in part.
Article 13
1. Should the Conference adopt a new Convention revising this Convention in
whole or in part, then, unless the new Convention otherwise provides-
(a) the ratification by a Member of the new revising Convention shall ipso
jure involve the immediate denunciation of this Convention,
notwithstanding the provisions of Article 9 above, if and when the new
revising Convention shall have come into force;
(b) as from the date when the new revising Convention comes into force
this Convention shall cease to be open to ratification by the Members.
2. This Convention shall in any case remain in force in its actual form and
content for those Members which have ratified it but have not ratified the
revising Convention.
Article 14
The English and French versions of the text of this Convention are equally
authoritative.
SCHEDULE 6 Section 4
CONVENTION CONCERNING EQUAL REMUNERATION FOR MEN AND WOMEN
WORKERS FOR WORK OF EQUAL VALUE.
The General Conference of the International Labour Organisation, Having been
convened at Geneva by the Governing Body of the International Labour Office,
and having met in its Thirty-fourth Session on 6 June 1951, and Having decided
upon the adoption of certain proposals with regard to the principle of equal
remuneration for men and women workers for work of equal value, which is the
seventh item on the agenda of the session, and Having determined that these
proposals shall take the form of an International Convention, adopts this
twenty-ninth day of June of the year one thousand nine hundred and fifty-one
the following Convention, which may be cited as the Equal Remuneration
Convention, 1951:
Article 1
For the purpose of this Convention-
(a) the term "remuneration" includes the ordinary, basic or minimum wage
or salary and any additional emoluments whatsoever payable directly or
indirectly, whether in cash or in kind, by the employer to the worker
and arising out of the worker's employment;
(b) the term "equal remuneration for men and women workers for work of
equal value" refers to rates of remuneration established without
discrimination based on sex.
Article 2
1. Each Member shall, by means appropriate to the methods in operation for
determining rates of remuneration, promote and, in so far as is consistent
with such methods, ensure the application to all workers of the principal of
equal remuneration for men and women workers for work of equal value.
2. This principle may be applied by means of-
(a) national laws or regulations;
(b) legally established or recognised machinery for wage determination;
(c) collective agreements between employers and workers; or
(d) a combination of these various means.
Article 3
1. Where such action will assist in giving effect to the provisions of this
Convention measures shall be taken to promote objective appraisal of jobs on
the basis of the work to be performed.
2. The methods to be followed in this appraisal may be decided upon by the
authorities responsible for the determination of rates of remuneration, or,
where such rates are determined by collective agreements, by the parties
thereto.
3. Differential rates between workers which correspond, without regard to sex,
to differences, as determined by such objective appraisal, in the work to be
performed shall not be considered as being contrary to the principle of equal
remuneration for men and women workers for work of equal value.
Article 4
Each Member shall co-operate as appropriate with the employers' and workers'
organisations concerned for the purpose of giving effect to the provisions of
this Convention.
Article 5
The formal ratifications of this Convention shall be communicated to the
Director-General of the International Labour Office for registration.
Article 6
1. This Convention shall be binding only upon those Members of the
International Labour Organisation whose ratifications have been registered
with the Director-General.
2. It shall come into force twelve months after the date on which the
ratifications of two Members have been registered with the Director- General.
3. Thereafter, this Convention shall come into force for any Member twelve
months after the date on which its ratification has been registered.
Article 7
1. Declarations communicated to the Director-General of the International
Labour Office in accordance with paragraph 2 of Article 35 of the Constitution
of the International Labour Organisation shall indicate-
(a) the territories in respect of which the Member concerned undertakes
that the provisions of the Convention shall be applied without
modification;
(b) the territories in respect of which it undertakes that the provisions
of the Convention shall be applied subject to modifications, together
with details of the said modifications;
(c) the territories in respect of which the Convention is inapplicable and
in such cases the grounds on which it is inapplicable;
(d) the territories in respect of which it reserves its decisions pending
further consideration of the position.
2. The undertakings referred to in subparagraphs (a) and (b) of paragraph 1 of
this Article shall be deemed to be an integral part of the ratification and
shall have the force of ratification.
3. Any Member may at any time by a subsequent declaration cancel in whole or
in part any reservation made in its original declaration in virtue of
subparagraphs (b), (c) or (d) of paragraph 1 of this Article.
4. Any Member may, at any time at which the Convention is subject to
denunciation in accordance with the provisions of Article 9, communicate to
the Director-General a declaration modifying in any other respect the terms of
any former declaration and stating the present position in respect of such
territories as it may specify.
Article 8
1. Declarations communicated to the Director-General of the International
Labour Office in accordance with paragraphs 4 or 5 of Article 35 of the
Constitution of the International Labour Organisation shall indicate whether
the provisions of the Convention will be applied in the territory concerned
without modification or subject to modifications; when the declaration
indicates that the provisions of the Convention will be applied subject to
modifications, it shall give details of the said modifications.
2. The Member, Members or international authority concerned may at any time by
a subsequent declaration renounce in whole or in part the right to have
recourse to any modification indicated in any former declaration.
3. The Member, Members or international authority concerned may, at any time
at which this Convention is subject to denunciation in accordance with the
provisions of Article 9, communicate to the Director-General a declaration
modifying in any other respect the terms of any former declaration and stating
the present position in respect of the application of the Convention.
Article 9
1. A Member which has ratified this Convention may denounce it after the
expiration of ten years from the date on which the Convention first comes into
force, by an act communicated to the Director-General of the International
Labour Office for registration. Such denunciation shall not take effect until
one year after the date on which it is registered.
2. Each Member which has ratified this Convention and which does not, within
the year following the expiration of the period of ten years mentioned in the
preceding paragraph, exercise the right of denunciation provided for in this
Article, will be bound for another period of ten years and, thereafter, may
denounce this Convention at the expiration of each period of ten years under
the terms provided for in this Article.
Article 10
1. The Director-General of the International Labour Office shall notify all
Members of the International Labour Organisation of the registration of all
ratifications, declarations and denunciations communicated to him by the
Members of the Organisation.
2. When notifying the Members of the Organisation of the registration of the
second ratification communicated to him, the Director-General shall draw the
attention of the Members of the Organisation to the date upon which the
Convention will come into force.
Article 11
The Director-General of the International Labour Office shall communicate to
the Secretary-General of the United Nations for registration in accordance
with Article 102 of the Charter of the United Nations full particulars of all
ratifications, declarations and acts of denunciation registered by him in
accordance with the provisions of the preceding articles.
Article 12
At such times as it may consider necessary the Governing Body of the
International Labour Office shall present to the General Conference a report
on the working of this Convention and shall examine the desirability of
placing on the agenda of the Conference the question of its revision in whole
or in part.
Article 13
1. Should the Conference adopt a new Convention revising this Convention in
whole or in part, then, unless the new Convention otherwise provides-
(a) the ratification by a Member of the new revising Convention shall ipso
jure involve the immediate denunciation of this Convention,
notwithstanding the provisions of Article 9 above, if and when the new
revising Convention shall have come into force;
(b) as from the date when the new revising Convention comes into force
this Convention shall cease to be open to ratification by the Members.
2. This Convention shall in any case remain in force in its actual form and
content for those Members which have ratified it but have not ratified the
revising Convention.
Article 14
The English and French versions of the text of this Convention are equally
authoritative.
The foregoing is the authentic text of the Convention duly adopted by the
General Conference of the International Labour Organisation during its
Thirty-fourth Session which was held at Geneva and declared closed the
twenty-ninth day of June 1951.
IN FAITH WHEREOF we have appended our signatures this second day of August
1951.
SCHEDULE 7 Section 170BA
RECOMMENDATION No. 90
RECOMMENDATION CONCERNING EQUAL REMUNERATION FOR MEN
AND WOMEN WORKERS FOR WORK OF EQUAL VALUE
The General Conference of the International Labour Organisation, Having been
convened at Geneva by the Governing Body of the International Labour Office,
and having met in its Thirty-fourth Session on 6 June 1951, and Having decided
upon the adoption of certain proposals with regard to the principle of equal
remuneration for men and women workers for work of equal value, which is the
seventh item on the agenda of the session, and Having determined that these
proposals shall take the form of a Recommendation, supplementing the Equal
Remuneration Covention, 1951, adopts this twenty-ninth day of June of the year
one thousand nine hundred and fifty-one the following Recommendation, which
may be cited as the Equal Remuneration Recommendation, 1951:
Whereas the Equal Remuneration Covention, 1951, lays down certain general
principles concerning equal remuneration for men and women workers for work of
equal value;
Whereas the Convention provides that the application of the principle of equal
remuneration for men and women workers for work of equal value shall be
promoted or ensured by means appropriate to the methods in operation for
determining rates of remuneration in the countries concerned;
Whereas it is desirable to indicate certain procedures for the progressive
application of the principles laid down in the Convention; Whereas it is at
the same time desirable that all Members should, in applying these principles,
have regard to methods of application which have been found satisfactory in
certain countries;
The Conference recommends that each Member should, subject to the provisions
of Article 2 of the Convention, apply the following provisions and report to
the International Labour Office as requested by the Governing Body concerning
the measures taken to give effect thereto:
1. Appropriate action should be taken, after consultation with the workers'
organisations concerned or, where such organisations do not exist, with the
workers concerned-
(a) to ensure the application of the principle of equal remuneration for
men and women workers for work of equal value to all employees of
central Government departments or agencies; and
(b) to encourage the application of the principle to employees of State,
provinical or local Government departments or agencies, where these
have jurisdiction over rates of remuneration.
2. Appropriate action should be taken, after consultation with the employers'
and workers' organisations concerned, to ensure, as rapidly as practicable,
the application of the principle of equal remuneration for men and women
workers for work of equal value in all occupations, other than those mentioned
in Paragraph 1, in which rates of remuneration are subject to statutory
regulation or public control, particularly as regards-
(a) the establishment of minimum or other wage rates in industries and
services where such rates are determined under public authority;
(b) industries and undertakings operated under public ownership or
control; and
(c) where appropriate, work executed under the terms of public contracts.
3. (1) Where appropriate in the light of the methods in operation for the
determination of rates of remuneration, provision should be made by legal
enactment for the general application of the principle of equal remuneration
for men and women for work of equal value.
(2) The competent public authority should take all necessary and appropriate
measures to ensure that employers and workers are fully informed as to such
legal requirements and, where appropriate, advised on their application.
4. When, after consultation with the organisations of workers and employers
concerned, where such exist, it is not deemed feasible to implement
immediately the principle of equal remuneration for men and women workers for
work of equal value, in respect of employment covered by Paragraph 1, 2 or 3,
appropriate provision should be made or caused to be made, as soon as
possible, for its progressive application, by such measures as-
(a) decreasing the differentials between rates of remuneration for men and
rates of remuneration for women for work of equal value;
(b) where a system of increments is in force, providing equal increments
for men and women workers performing work of equal value.
5. Where appropriate for the purpose of facilitating the determination of
rates of remuneration in accordance with the principle of equal remuneration
for men and women workers for work of equal value, each Member should, in
agreement with the employers' and workers' organisations concerned, establish
or encourage the establishment of methods for objective appraisal of the work
to be performed, whether by job analysis or by other procedures, with a view
to providing a classification of jobs without regard to sex; such methods
should be applied in accordance with the provisions of Article 2 of the
Convention.
6. In order to facilitate the application of the principle of equal
remuneration for men and women workers for work of equal value, appropriate
action should be taken, where necessary, to raise the productive efficiency of
women workers by such measures as-
(a) ensuring that workers of both sexes have equal or equivalent
facilities for vocational guidance or employment counselling, for
vocational training and for placement;
(b) taking appropriate measures to encourage women to use facilities for
vocational guidance or employment counselling, for vocational training
and for placement;
(c) providing welfare and social services which meet the needs of women
workers, particularly those with family responsibilities, and
financing such services from general public funds or from social
security or industrial welfare funds financed by payments made in
respect of workers without regard to sex; and
(d) promoting equality of men and women workers as regards access to
occupations and posts without prejudice to the provisions of
international regulations and of national laws and regulations
concerning the protection of the health and welfare of women.
7. Every effort should be made to promote public understanding of the grounds
on which it is considered that the principle of equal remuneration for men and
women workers for work of equal value should be implemented.
8. Such investigations as may be desirable to promote the application of the
principle should be undertaken.
SCHEDULE 8 Sections 4 and 170PA
PREAMBLE, AND PARTS II AND III, OF THE INTERNATIONAL COVENANT
ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS
PREAMBLE
The States Parties to the present Covenant,Considering that, in accordance
with the principles proclaimed in the Charter of the United Nations,
recognition of the inherent dignity and of the equal and inalienable rights of
all members of the human family is the foundation of freedom, justice and
peace in the world, Recognizing that these rights derive from the inherent
dignity of the human person, Recognizing that, in accordance with the
Universal Declaration of Human Rights, the ideal of free human beings enjoying
freedom from fear and want can only be achieved if conditions are created
whereby everyone may enjoy his economic, social and cultural rights, as well
as his civil and political rights, Considering the obligation of States under
the Charter of the United Nations to promote universal respect for, and
observance of, human rights and freedoms, Realizing that the individual,
having duties to other individuals and to the community to which he belongs,
is under a responsibility to strive for the promotion and observance of the
rights recognized in the present Covenant, Agree upon the following articles:
PART II
Article 2
1. Each State Party to the present Covenant undertakes to take steps,
individually and through international assistance and co-operation, especially
economic and technical, to the maximum of its available resources, with a view
to achieving progressively the full realization of the rights recognized in
the present Covenant by all appropriate means, including particularly the
adoption of legislative measures.
2. The States Parties to the present Covenant undertake to guarantee that the
rights enunciated in the present Covenant will be exercised without
discrimination of any kind as to race, colour, sex, language, religion,
political or other opinion, national or social origin, property, birth or
other status.
3. Developing countries, with due regard to human rights and their national
economy, may determine to what extent they would guarantee the economic rights
recognized in the present Covenant to non-nationals.
Article 3
The States Parties to the present Covenant undertake to ensure the equal right
of men and women to the enjoyment of all economic, social and cultural rights
set forth in the present Covenant.
Article 4
The States Parties to the present Covenant recognize that, in the enjoyment of
those rights provided by the State in conformity with the present Covenant,
the State may subject such rights only to such limitations as are determined
by law only in so far as this may be compatible with the nature of these
rights and solely for the purpose of promoting the general welfare in a
democratic society.
Article 5
1. Nothing in the present Covenant may be interpreted as implying for any
State, group or person any right to engage in any activity or to perform any
act aimed at the destruction of any of the rights or freedoms recognized
herein, or at their limitation to a greater extent than is provided for in the
present Covenant.
2. No restriction upon or derogation from any of the fundamental human rights
recognized or existing in any country in virtue of law, conventions,
regulations or custom shall be admitted on the pretext that the present
Covenant does not recognize such rights or that it recognizes them to a lesser
extent.
PART III
Article 6
1. The States Parties to the present Covenant recognize the right to work,
which includes the right of everyone to the opportunity to gain his living by
work which he freely chooses or accepts, and will take appropriate steps to
safeguard this right.
2. The steps to be taken by a State Party to the present Covenant to achieve
the full realization of this right shall include technical and vocational
guidance and training programmes, policies and techniques to achieve steady
economic, social and cultural development and full and productive employment
under conditions safeguarding fundamental political and economic freedoms to
the individual.
Article 7
The States Parties to the present Covenant recognize the right of everyone to
the enjoyment of just and favourable conditions of work which ensure, in
particular:
(a) Remuneration which provides all workers, as a minimum, with:
(i) Fair wages and equal remuneration for work of equal value
without distinction of any kind, in particular women being
guaranteed conditions of work not inferior to those enjoyed by
men, with equal pay for equal work;
(ii) A decent living for themselves and their families in accordance
with the provisions of the present Covenant;
(b) Safe and healthy working conditions;
(c) Equal opportunity for everyone to be promoted in his employment to an
appropriate higher level, subject to no considerations other than
those of seniority and competence;
(d) Rest, leisure and reasonable limitation of working hours and periodic
holidays with pay, as well as remuneration for public holidays.
Article 8
1. The States Parties to the present Covenant undertake to ensure:
(a) The right of everyone to form trade unions and join the trade union of
his choice, subject only to the rules of the organization concerned,
for the promotion and protection of his economic and social interests.
No restrictions may be placed on the exercise of this right other than
those prescribed by law and which are necessary in a democratic
society in the interests of national security or public order or for
the protection of the rights and freedoms of others;
(b) The right of trade unions to establish national federations or
confederations and the right of the latter to form or join
international trade-union organizations;
(c) The right of trade unions to function freely subject to no limitations
other than those prescribed by law and which are necessary in a
democratic society in the interests of national security or public
order or for the protection of the rights and freedoms of others;
(d) The right to strike, provided that it is exercised in conformity with
the laws of the particular country.
2. This article shall not prevent the imposition of lawful restrictions on the
exercise of these rights by members of the armed forces or of the police or of
the administration of the State.
3. Nothing in this article shall authorize States Parties to the International
Labour Organisation Convention of 1948 concerning Freedom of Association and
Protection of the Right to Organize to take legislative measures which would
prejudice, or apply the law in such a manner as would prejudice, the
guarantees provided for in that Convention.
Article 9
The States Parties to the present Covenant recognize the right of everyone to
social security, including social insurance.
Article 10
The States Parties to the present Covenant recognize that:
1. The widest possible protection and assistance should be accorded to the
family, which is the natural and fundamental group unit of society,
particularly for its establishment and while it is responsible for the care
and education of dependent children. Marriage must be entered into with the
free consent of the intending spouses.
2. Special protection should be accorded to mothers during a reasonable period
before and after childbirth. During such period working mothers should be
accorded paid leave or leave with adequate social security benefits.
3. Special measures of protection and assistance should be taken on behalf of
all children and young persons without any discrimination for reasons of
parentage or other conditions. Children and young persons should be protected
from economic and social exploitation. Their employment in work harmful to
their morals or health or dangerous to life or likely to hamper their normal
development should be punishable by law. States should also set age limits
below which the paid employment of child labour should be prohibited and
punishable by law.
Article 11
1. The States Parties to the present Covenant recognize the right of everyone
to an adequate standard of living for himself and his family, including
adequate food, clothing and housing, and to the continuous improvement of
living conditions. The States Parties will take appropriate steps to ensure
the realization of this right, recognizing to this effect the essential
importance of international co-operation based on free consent.
2. The States Parties to the present Covenant, recognizing the fundamental
right of everyone to be free from hunger, shall take, individually and through
international co-operation, the measures, including specific programmes, which
are needed:
(a) To improve methods of production, conservation and distribution of
food by making full use of technical and scientific knowledge, by
disseminating knowledge of the principles of nutrition and by
developing or reforming agrarian systems in such a way as to achieve
the most efficient development and utilization of natural resources;
(b) Taking into account the problems of both food-importing and food-
exporting countries, to ensure an equitable distribution of world food
supplies in relation to need.
Article 12
1. The States Parties to the present Covenant recognize the right of everyone
to the enjoyment of the highest attainable standard of physical and mental
health.
2. The steps to be taken by the States Parties to the present Covenant to
achieve the full realization of this right shall include those necessary for:
(a) The provision for the reduction of the stillbirth-rate and of infant
mortality and for the healthy development of the child;
(b) The improvement of all aspects of environmental and industrial
hygiene;
(c) The prevention, treatment and control of epidemic, endemic,
occupational and other diseases;
(d) The creation of conditions which would assure to all medical service
and medical attention in the event of sickness.
Article 13
1. The States Parties to the present Covenant recognize the right of everyone
to education. They agree that education shall be directed to the full
development of the human personality and the sense of its dignity, and shall
strengthen the respect for human rights and fundamental freedoms. They further
agree that education shall enable all persons to participate effectively in a
free society, promote understanding, tolerance and friendship among all
nations and all racial, ethnic or religious groups, and further the activities
of the United Nations for the maintenance of peace.
2. The States Parties to the present Covenant recognize that, with a view to
achieving the full realization of this right:
(a) Primary education shall be compulsory and available free to all;
(b) Secondary education in its different forms, including technical and
vocational secondary education, shall be made generally available and
accessible to all by every appropriate means, and in particular by the
progressive introduction of free education;
(c) Higher education shall be made equally accessible to all, on the basis
of capacity, by every appropriate means, and in particular by the
progressive introduction of free education;
(d) Fundamental education shall be encouraged or intensified as far as
possible for those persons who have not received or completed the
whole period of their primary education;
(e) The development of a system of schools at all levels shall be actively
pursued, an adequate fellowship system shall be established, and the
material conditions of teaching staff shall be continuously improved.
3. The States Parties to the present Covenant undertake to have respect for
the liberty of parents and, when applicable, legal guardians to choose for
their children schools, other than those established by the public
authorities, which conform to such minimum educational standards as may be
laid down or approved by the State and to ensure the religious and moral
education of their children in conformity with their own convictions.
4. No part of this article shall be construed so as to interfere with the
liberty of individuals and bodies to establish and direct educational
institutions, subject always to the observance of the principles set forth in
paragraph 1 of this article and to the requirement that the education given in
such institutions shall conform to such minimum standards as may be laid down
by the State.
Article 14
Each State Party to the present Covenant which, at the time of becoming a
Party, has not been able to secure in its metropolitan territory or other
territories under its jurisdiction compulsory primary education, free of
charge, undertakes, within two years, to work out and adopt a detailed plan of
action for the progressive implementation, within a reasonable number of
years, to be fixed in the plan, of the principle of compulsory education free
of charge for all.
Article 15
1. The States Parties to the present Covenant recognize the right of everyone:
(a) To take part in cultural life;
(b) To enjoy the benefits of scientific progress and its applications;
(c) To benefit from the protection of the moral and material interests
resulting from any scientific, literary or artistic production of
which he is the author.
2. The steps to be taken by the States Parties to the present Covenant to
achieve the full realization of this right shall include those necessary for
the conservation, the development and the diffusion of science and culture.
3. The States Parties to the present Covenant undertake to respect the freedom
indispensable for scientific research and creative activity.
4. The States Parties to the present Covenant recognize the benefits to be
derived from the encouragement and development of international contacts and
co-operation in the scientific and cultural fields.
SCHEDULE 9 Section 170BA
RECOMMENDATION No. 111
RECOMMENDATION CONCERNING DISCRIMINATION IN RESPECT OF
EMPLOYMENT AND OCCUPATION
The General Conference of the International Labour Organisation, Having been
convened at Geneva by the Governing Body of the International Labour Office,
and having met in its Forty-second Session on 4 June 1958, and Having decided
upon the adoption of certain proposals with regard to discrimination in the
field of employment and occupation, which is the fourth item on the agenda of
the session, and Having determined that these proposals shall take the form of
a Recommendation supplementing the Discrimination (Employment and Occupation)
Convention, 1958, adopts this twenty-fifth day of June of the year one
thousand nine hundred and fifty-eight the following Recommendation, which may
be cited as the Discrimination (Employment and Occupation) Recommendation,
1958;
The Conference recommends that each Member should apply the following
provisions:
I. DEFINITIONS
1.(1) For the purpose of this Recommendation the term "discrimination"
includes-
(a) any distinction, exclusion or preference made on the basis of race,
colour, sex, religion, political opinion, national extraction or
social origin, which has the effect of nullifying or impairing
equality of opportunity or treatment in employment or occupation;
(b) such other distinction, exclusion or preference which has the effect
of nullifying or impairing equality of opportunity or treatment in
employment or occupation as may be determined by the Member concerned
after consultation with representative employers' and workers'
organisations, which such exist, and with other appropriate bodies.
(2) Any distinction, exclusion or preference in respect of a particular job
based on the inherent requirements thereof is not deemed to be discrimination.
(3) For the purpose of this Recommendation the terms "employment" and
"occupation" include access to vocational training, access to employment and
to particular occupations, and terms and conditions of employment.
II. FORMULATION AND APPLICATION OF POLICY
2. Each Member should formulate a national policy for the prevention of
discrimination in employment and occupation. This policy should be applied by
means of legislative measures, collective agreements between representative
employers' and workers' organisations or in any other manner consistent with
national conditions and practice, and should have regard to the following
principles:
(a) the promotion of equality of opportunity and treatment in employment
and occupation is a matter of public concern;
(b) all persons should, without discrimination, enjoy equality of
opportunity and treatment in respect of-
(i) access to vocational guidance and placement services;
(ii) access to training and employment of their own choice on the
basis of individual suitability for such training or
employment;
(iii) advancement in accordance with their individual character,
experience, ability and diligence;
(iv) security of tenure of employment;
(v) remuneration for work of equal value;
(vi) conditions of work including hours of work, rest periods,
annual holidays with pay, occupational safety and occupational
health measures, as well as social security measures and
welfare facilities and benefits provided in connection with
employment;
(c) government agencies should apply non-discriminatory employment
policies in all their activities;
(d) employers should not practise or countenance discrimination in
engaging or training any person for employment, in advancing or
retaining such person in employment, or in fixing terms and conditions
of employment; nor should any person or organisation obstruct or
interfere, either directly or indirectly, with employers in pursuing
this principle;
(e) in collective negotiations and industrial relations the parties should
respect the principle of equality of opportunity and treatment in
employment and occupation, and should ensure that collective
agreements contain no provisions of a discriminatory character in
respect of access to, training for, advancement in or retention of
employment or in respect of the terms and conditions of employment;
(f) employers' and workers' organisations should not practise or
countenance discrimination in respect of admission, retention of
membership or participation in their affairs.
3. Each Member should-
(a) ensure application of the principles of non-discrimination-
(i) in respect of employment under the direct control of a national
authority;
(ii) in the activities of vocational guidance, vocational training
and placement services under the direction of a national
authority;
(b) promote their observance, where practicable and necessary, in respect
of other employment and other vocational guidance, vocational training
and placement services by such methods as-
(i) encouraging state, provincial or local government departments
or agencies and industries and undertakings operated under
public ownership or control to ensure the application of the
principles;
(ii) making eligibility for contracts involving the expenditure of
public funds dependent on observance of the principles;
(iii) making eligibility for grants to training establishments and
for a licence to operate a private employment agency or a
private vocational guidance office dependent on observance of
the principles.
4. Appropriate agencies, to be assisted where practicable by advisory
committees composed of representatives of employers' and workers'
organisations, where such exist, and of other interested bodies, should be
established for the purpose of promoting application of the policy in all
fields of public and private employment, and in particular-
(a) to take all practicable measures to foster public understanding and
acceptance of the principles of non-discrimination;
(b) to receive, examine and investigate complaints that the policy is not
being observed and, if necessary by conciliation, to secure the
correction of any practices regarded as in conflict with the policy;
and
(c) to consider further any complaints which cannot be effectively settled
by conciliation and to render opinions or issue decisions concerning
the manner in which discriminatory practices revealed should be
corrected.
5. Each Member should repeal any statutory provisions and modify any
administrative instructions or practices which are inconsistent with the
policy.
6. Application of the policy should not adversely affect special measures
designed to meet the particular requirements of persons who, for reasons such
as sex, age, disablement, family responsibilities or social or cultural status
are generally recognised to require special protection or assistance.
7. Any measures affecting an individual who is justifiably suspected of, or
engaged in, activities prejudicial to the security of the State should not be
deemed to be discrimination, provided that the individual concerned has the
right to appeal to a competent body established in accordance with national
practice.
8. With respect to immigrant workers of foreign nationality and the members of
their families, regard should be had to the provisions of the Migration for
Employment Convention (Revised), 1949, relating to equality of treatment and
the provisions of the Migration for Employment Recommendation (Revised), 1949,
relating to the lifting of restrictions on access to employment.
9. There should be continuing co-operation between the competent authorities,
representatives of employers and workers and appropriate bodies to consider
what further positive measures may be necessary in the light of national
conditions to put the principles of non-discrimination into effect.
III. CO-ORDINATION OF MEASURES FOR THE PREVENTION
OF DISCRIMINATION IN ALL FIELDS
10. The authorities responsible for action against discrimination in
employment and occupation should co-operate closely and continuously with the
authorities responsible for action against discrimination in other fields in
order that measures taken in all fields may be co-ordinated.
SCHEDULE 10 Section 4
CONVENTION CONCERNING TERMINATION OF EMPLOYMENT AT THE
INITIATIVE OF THE EMPLOYER
The General Conference of the International Labour Organisation, Having been
convened at Geneva by the Governing Body of the International Labour Office,
and having met in its Sixty-eighth Session on 2 June 1982, and Noting the
existing international standards contained in the Termination of Employment
Recommendation, 1963, and Noting that since the adoption of the Termination of
Employment Recommendation, 1963, significant developments have occurred in the
law and practice of many member States on the questions covered by that
Recommendation, and Considering that these developments have made it
appropriate to adopt new international standards on the subject, particularly
having regard to the serious problems in this field resulting from the
economic difficulties and technological changes experienced in recent years in
many countries, Having decided upon the adoption of certain proposals with
regard to termination of employment at the initiative of the employer, which
is the fifth item on the agenda of the session, and Having determined that
these proposals shall take the form of an international Convention; adopts
this twenty-second day of June of the year one thousand nine hundred and
eighty-two the following Convention, which may be cited as the Termination of
Employment Convention, 1982:
PART I. METHODS OF IMPLEMENTATION, SCOPE AND DEFINITIONS
Article 1
The provisions of this Convention shall, in so far as they are not otherwise
made effective by means of collective agreements, arbitration awards or court
decisions or in such other manner as may be consistent with national practice,
be given effect by laws or regulations.
Article 2
1. This Convention applies to all branches of economic activity and to all
employed persons.
2. A Member may exclude the following categories of employed persons from all
or some of the provisions of this Convention:
(a) workers engaged under a contract of employment for a specified period
of time or a specified task;
(b) workers serving a period of probation or a qualifying period of
employment, determined in advance and of reasonable duration;
(c) workers engaged on a casual basis for a short period.
3. Adequate safeguards shall be provided against recourse to contracts of
employment for a specified period of time the aim of which is to avoid the
protection resulting from this Convention.
4. In so far as necessary, measures may be taken by the competent authority or
through the appropriate machinery in a country, after consultation with the
organisations of employers and workers concerned, where such exist, to exclude
from the application of this Convention or certain provisions thereof
categories of employed persons whose terms and conditions of employment are
governed by special arrangements which as a whole provide protection that is
at least equivalent to the protection afforded under the Convention.
5. In so far as necessary, measures may be taken by the competent authority or
through the appropriate machinery in a country, after consultation with the
organisations of employers and workers concerned, where such exist, to exclude
from the application of this Convention or certain provisions thereof other
limited categories of employed persons in respect of which special problems of
a substantial nature arise in the light of the particular conditions of
employment of the workers concerned or the size or nature of the undertaking
that employs them.
6. Each Member which ratifies this Convention shall list in the first report
on the application of the Convention submitted under article 22 of the
Constitution of the International Labour Organisation any categories which may
have been excluded in pursuance of paragraphs 4 and 5 of this Article, giving
the reasons for such exclusion, and shall state in subsequent reports the
position of its law and practice regarding the categories excluded, and the
extent to which effect has been given or is proposed to be given to the
Convention in respect of such categories.
Article 3
For the purpose of this Convention the terms "termination" and "termination of
employment" mean termination of employment at the initiative of the employer.
PART II. STANDARDS OF GENERAL APPLICATION
DIVISION A. JUSTIFICATION FOR TERMINATION
Article 4
The employment of a worker shall not be terminated unless there is a valid
reason for such termination connected with the capacity or conduct of the
worker or based on the operational requirements of the undertaking,
establishment or service.
Article 5
The following, inter alia, shall not constitute valid reasons for termination:
(a) union membership or participation in union activities outside working
hours or, with the consent of the employer, within working hours;
(b) seeking office as, or acting or having acted in the capacity of, a
workers' representative;
(c) the filing of a complaint or the participation in proceedings against
an employer involving alleged violation of laws or regulations or
recourse to competent administrative authorities;
(d) race, colour, sex, marital status, family responsibilities, pregnancy,
religion, political opinion, national extraction or social origin;
(e) absence from work during maternity leave.
Article 6
1. Temporary absence from work because of illness or injury shall not
constitute a valid reason for termination.
2. The definition of what constitutes temporary absence from work, the extent
to which medical certification shall be required and possible limitations to
the application of paragraph 1 of this Article shall be determined in
accordance with the methods of implementation referred to in Article 1 of this
Convention.
DIVISION B. PROCEDURE PRIOR TO OR AT THE TIME OF TERMINATION
Article 7
The employment of a worker shall not be terminated for reasons related to the
worker's conduct or performance before he is provided an opportunity to defend
himself against the allegations made, unless the employer cannot reasonably be
expected to provide this opportunity.
DIVISION C. PROCEDURE OF APPEAL AGAINST TERMINATION
Article 8
1. A worker who considers that his employment has been unjustifiably
terminated shall be entitled to appeal against that termination to an
impartial body, such as a court, labour tribunal, arbitration committee or
arbitrator.
2. Where termination has been authorised by a competent authority the
application of paragraph 1 of this Article may be varied according to national
law and practice.
3. A worker may be deemed to have waived his right to appeal against the
termination of his employment if he has not exercised that right within a
reasonable period of time after termination.
Article 9
1. The bodies referred to in Article 8 of this Convention shall be empowered
to examine the reasons given for the termination and the other circumstances
relating to the case and to render a decision on whether the termination was
justified.
2. In order for the worker not to have to bear alone the burden of proving
that the termination was not justified, the methods of implementation referred
to in Article 1 of this Convention shall provide for one or the other or both
of the following possibilities:
(a) the burden of proving the existence of a valid reason for the
termination as defined in Article 4 of this Convention shall rest on
the employer;
(b) the bodies referred to in Article 8 of this Convention shall be
empowered to reach a conclusion on the reason for the termination
having regard to the evidence provided by the parties and according to
procedures provided for by national law and practice.
3. In cases of termination stated to be for reasons based on the operational
requirements of the undertaking, establishment or service, the bodies referred
to in Article 8 of this Convention shall be empowered to determine whether the
termination was indeed for these reasons, but the extent to which they shall
also be empowered to decide whether these reasons are sufficient to justify
that termination shall be determined by the methods of implementation referred
to in Article 1 of this Convention.
Article 10
If the bodies referred to in Article 8 of this Convention find that
termination is unjustified and if they are not empowered or do not find it
practicable, in accordance with national law and practice, to declare the
termination invalid and/or order or propose reinstatement of the worker, they
shall be empowered to order payment of adequate compensation or such other
relief as may be deemed appropriate.
DIVISION D. PERIOD OF NOTICE
Article 11
A worker whose employment is to be terminated shall be entitled to a
reasonable period of notice or compensation in lieu thereof, unless he is
guilty of serious misconduct, that is, misconduct of such a nature that it
would be unreasonable to require the employer to continue his employment
during the notice period.
DIVISION E. SEVERANCE ALLOWANCE AND OTHER INCOME PROTECTION
Article 12
1. A worker whose employment has been terminated shall be entitled, in
accordance with national law and practice, to-
(a) a severance allowance or other separation benefits, the amount of
which shall be based inter alia on length of service and the level of
wages, and paid directly by the employer or by a fund constituted by
employers' contributions; or
(b) benefits from unemployment insurance or assistance or other forms of
social security, such as old-age or invalidity benefits, under the
normal conditions to which such benefits are subject; or
(c) a combination of such allowance and benefits.
2. A worker who does not fulfil the qualifying conditions for unemployment
insurance or assistance under a scheme of general scope need not be paid any
allowance or benefit referred to in paragraph 1, subparagraph (a), of this
Article solely because he is not receiving an unemployment benefit under
paragraph 1, subparagraph (b).
3. Provision may be made by the methods of implementation referred to in
Article 1 of this Convention for loss of entitlement to the allowance or
benefits referred to in paragraph 1, subparagraph (a), of this Article in the
event of termination for serious misconduct.
PART III. SUPPLEMENTARY PROVISIONS CONCERNING TERMINATIONS OF
EMPLOYMENT FOR ECONOMIC, TECHNOLOGICAL, STRUCTURAL OR SIMILAR REASONS
DIVISION A. CONSULTATION OF WORKERS' REPRESENTATIVES
Article 13
1. When the employer contemplates terminations for reasons of an economic,
technological, structural or similar nature, the employer shall:
(a) provide the workers' representatives concerned in good time with
relevant information including the reasons for the terminations
contemplated, the number and categories of workers likely to be
affected and the period over which the terminations are intended to be
carried out;
(b) give, in accordance with national law and practice, the workers'
representatives concerned, as early as possible, an opportunity for
consultation on measures to be taken to avert or to minimise the
terminations and measures to mitigate the adverse effects of any
terminations on the workers concerned such as finding alternative
employment.
2. The applicability of paragraph 1 of this Article may be limited by the
methods of implementation referred to in Article 1 of this Convention to cases
in which the number of workers whose termination of employment is contemplated
is at least a specified number or percentage of the workforce.
3. For the purposes of this Article the term "the workers' representatives
concerned" means the workers' representatives recognised as such by national
law or practice, in conformity with the Workers' Representatives Convention,
1971.
DIVISION B. NOTIFICATION TO THE COMPETENT AUTHORITY
Article 14
1. When the employer contemplates terminations for reasons of an economic,
technological, structural or similar nature, he shall notify, in accordance
with national law and practice, the competent authority thereof as early as
possible, giving relevant information, including a written statement of the
reasons for the terminations, the number and categories of workers likely to
be affected and the period over which the terminations are intended to be
carried out.
2. National laws or regulations may limit the applicability of paragraph 1 of
this Article to cases in which the number of workers whose termination of
employment is contemplated is at least a specified number or percentage of the
workforce.
3. The employer shall notify the competent authority of the terminations
referred to in paragraph 1 of this Article a minimum period of time before
carrying out the terminations, such period to be specified by national laws or
regulations.
PART IV. FINAL PROVISIONS
Article 15
The formal ratifications of this Convention shall be communicated to the
Director-General of the International Labour Office for registration.
Article 16
1. This Convention shall be binding only upon those Members of the
International Labour Organisation whose ratifications have been registered
with the Director-General.
2. It shall come into force twelve months after the date on which the
ratifications of two Members have been registered with the Director-General.
3. Thereafter, this Convention shall come into force for any Member twelve
months after the date on which its ratification has been registered.
Article 17
1. A Member which has ratified this Convention may denounce it after the
expiration of ten years from the date on which the Convention first comes into
force, by an act communicated to the Director-General of the International
Labour Office for registration. Such denunciation shall not take effect until
one year after the date on which it is registered.
2. Each Member which has ratified this Convention and which does not, within
the year following the expiration of the period of ten years mentioned in the
preceding paragraph, exercise the right of denunciation provided for in this
Article, will be bound for another period of ten years and, thereafter, may
denounce this Convention at the expiration of each period of ten years under
the terms provided for in this Article.
Article 18
1. The Director-General of the International Labour Office shall notify all
Members of the International Labour Organisation of the registration of all
ratifications and denunciations communicated to him by the Members of the
Organisation.
2. When notifying the Members of the Organisation of the registration of the
second ratification communicated to him, the Director-General shall draw the
attention of the Members of the Organisation to the date upon which the
Convention will come into force.
Article 19
The Director-General of the International Labour Office shall communicate to
the Secretary-General of the United Nations for registration in accordance
with article 102 of the Charter of the United Nations full particulars of all
ratifications and acts of denunciation registered by him in accordance with
the provisions of the preceding Articles.
Article 20
At such times as it may consider necessary the Governing Body of the
International Labour Office shall present to the General Conference a report
on the working of this Convention and shall examine the desirability of
placing on the agenda of the conference the question of its revision in whole
or in part.
Article 21
1. Should the Conference adopt a new Convention revising this Convention in
whole or in part, then, unless the new Convention otherwise provides-
(a) the ratification by a Member of the new revising Convention shall ipso
jure involve the immediate denunciation of this Convention,
notwithstanding the provisions of Article 17 above, if and when the
new revising Convention shall have come into force;
(b) as from the date when the new revising Convention comes into force
this Convention shall cease to be open to ratification by the Members.
2. This Convention shall in any case remain in force in its actual form and
content for those Members which have ratified it but have not ratified the
revising Convention.
Article 22
The English and French versions of the text of this Convention are equally
authoritative.
The foregoing is the authentic text of the Convention duly adopted by the
General Conference of the International Labour Organisation during its
Sixty-eighth Session which was held at Geneva and declared closed the
twenty-third day of June 1982. IN FAITH WHEREOF we have appended our
signatures this twenty-third day of June 1982.
SCHEDULE 11 Section 170CA
RECOMMENDATION No. 166
RECOMMENDATION CONCERNING TERMINATION OF
EMPLOYMENT AT THE INITIATIVE OF THE EMPLOYER
The General Conference of the International Labour Organisation, Having been
convened at Geneva by the Governing Body of the International Labour Office,
and having met in its Sixty-eighth Session on 2 June 1982, and Having decided
upon the adoption of certain proposals with regard to termination of
employment at the initiative of the employer, which is the fifth item on the
agenda of the session, and Having determined that these proposals shall take
the form of a Recommendation supplementing the Termination of Employment
Convention, 1982; adopts this twenty-second day of June of the year one
thousand nine hundred and eighty-two, the following Recommendation, which may
be cited as the Termination of Employment Recommendation, 1982:
I. METHODS OF IMPLEMENTATION, SCOPE AND DEFINITIONS
1. The provisions of this Recommendation may be applied by national laws or
regulations, collective agreements, works rules, arbitration awards or court
decisions or in such other manner consistent with national practice as may be
appropriate under national conditions.
2.(1) This Recommendation applies to all branches of economic activity and to
all employed persons.
(2) A Member may exclude the following categories of employed persons from all
or some of the provisions of this Recommendation:
(a) workers engaged under a contract of employment for a specified period
of time or a specified task;
(b) workers serving a period of probation or a qualifying period of
employment, determined in advance and of reasonable duration;
(c) workers engaged on a casual basis for a short period.
(3) In so far as necessary, measures may be taken by the competent authority
or through the appropriate machinery in a country, after consultation with the
organisations of employers and workers concerned, where such exist, to exclude
from the application of this Recommendation or certain provisions thereof
categories of employed persons whose terms and conditions of employment are
governed by special arrangements, which as a whole provide protection that is
at least equivalent to the protection afforded under the Recommendation.
(4) In so far as necessary, measures may be taken by the competent authority
or through the appropriate machinery in a country, after consultation with the
organisations of employers and workers concerned, where such exist, to exclude
from the application of this Recommendation or certain provisions thereof
other limited categories of employed persons in respect of which special
problems of a substantial nature arise in the light of the particular
conditions of employment of the workers concerned or the size or nature of the
undertaking that employs them.
3.(1) Adequate safeguards should be provided against recourse to contracts of
employment for a specified period of time the aim of which is to avoid the
protection resulting from the Termination of Employment Convention, 1982, and
this Recommendation.
(2) To this end, for example, provision may be made for one or more of the
following:
(a) limiting recourse to contracts for a specified period of time to cases
in which, owing either to the nature of the work to be effected or to
the circumstances under which it is to be effected or to the interests
of the worker, the employment relationship cannot be of indeterminate
duration;
(b) deeming contracts for a specified period of time, other than in the
cases referred to in clause (a) of this subparagraph, to be contracts
of employment of indeterminate duration;
(c) deeming contracts for a specified period of time, when renewed on one
or more occasions, other than in the cases mentioned in clause (a) of
this subparagraph, to be contracts of employment of indeterminate
duration.
4. For the purpose of this Recommendation the terms "termination" and
"termination of employment" mean termination of employment at the initiative
of the employer.
II. STANDARDS OF GENERAL APPLICATION
Justification for Termination
5. In addition to the grounds referred to in Article 5 of the Termination of
Employment Convention, 1982, the following should not constitute valid reasons
for termination:
(a) age, subject to national law and practice regarding retirement;
(b) absence from work due to compulsory military service or other civic
obligations, in accordance with national law and practice.
6.(1) Temporary absence from work because of illness or injury should not
constitute a valid reason for termination.
(2) The definition of what constitutes temporary absence from work, the extent
to which medical certification should be required and possible limitations to
the application of subparagraph (1) of this Paragraph should be determined in
accordance with the methods of implementation referred to in Paragraph 1 of
this Recommendation. Procedure Prior to or at the Time of Termination
7. The employment of a worker should not be terminated for misconduct of a
kind that under national law or practice would justify termination only if
repeated on one or more occasions, unless the employer has given the worker
appropriate written warning.
8. The employment of a worker should not be terminated for unsatisfactory
performance, unless the employer has given the worker appropriate instructions
and written warning and the worker continues to perform his duties
unsatisfactorily after a reasonable period of time for improvement has
elapsed.
9. A worker should be entitled to be assisted by another person when defending
himself, in accordance with Article 7 of the Termination of Employment
Convention, 1982, against allegations regarding his conduct or performance
liable to result in the termination of his employment; this right may be
specified by the methods of implementation referred to in Paragraph 1 of this
Recommendation.
10. The employer should be deemed to have waived his right to terminate the
employment of a worker for misconduct if he has failed to do so within a
reasonable period of time after he has knowledge of the misconduct.
11. The employer may consult workers' representatives before a final decision
is taken on individual cases of termination of employment.
12. The employer should notify a worker in writing of a decision to terminate
his employment.
13.(1) A worker who has been notified of termination of employment or whose
employment has been terminated should be entitled to receive, on request, a
written statement from his employer of the reason or reasons for the
termination.
(2) Subparagraph (1) of this Paragraph need not be applied in the case of
collective termination for the reasons referred to in Articles 13 and 14 of
the Termination of Employment Convention, 1982, if the procedure provided for
therein is followed.Procedure of Appeal against Termination
14. Provision may be made for recourse to a procedure of conciliation before
or during appeal proceedings against termination of employment.
15. Efforts should be made by public authorities, workers' representatives and
organisations of workers to ensure that workers are fully informed of the
possibilities of appeal at their disposal. Time Off from Work during the
Period of Notice
16. During the period of notice referred to in Article 11 of the Termination
of Employment Convention, 1982, the worker should, for the purpose of seeking
other employment, be entitled to a reasonable amount of time off without loss
of pay, taken at times that are convenient to both parties. Certificate of
Employment
17. A worker whose employment has been terminated should be entitled to
receive, on request, a certificate from the employer specifying only the dates
of his engagement and termination of his employment and the type or types of
work on which he was employed; nevertheless, and at the request of the worker,
an evaluation of his conduct and performance may be given in this certificate
or in a separate certificate. Severance Allowance and Other Income Protection
18.(1) A worker whose employment has been terminated should be entitled, in
accordance with national law and practice, to-
(a) a severance allowance or other separation benefits, the amount of
which should be based, inter alia, on length of service and the level
of wages, and paid directly by the employer or by a fund constituted
by employers' contributions; or
(b) benefits from unemployment insurance or assistance or other forms of
social security, such as old-age or invalidity benefits, under the
normal conditions to which such benefits are subject; or
(c) a combination of such allowance and benefits.
(2) A worker who does not fulfil the qualifying conditions for unemployment
insurance or assistance under a scheme of general scope need not be paid any
allowance or benefit referred to in subparagraph (1)(a) of this Paragraph
solely because he is not receiving an unemployment benefit under subparagraph
(1)(b).
(3) Provision may be made by the methods of implementation referred to in
Paragraph 1 of this Recommendation for loss of entitlement to the allowance or
benefits referred to in subparagraph (1)(a) of this Paragraph in the event of
termination for serious misconduct.
III. SUPPLEMENTARY PROVISIONS CONCERNING TERMINATIONS OF EMPLOYMENT
FOR ECONOMIC, TECHNOLOGICAL, STRUCTURAL OR SIMILAR REASONS
19.(1) All parties concerned should seek to avert or minimise as far as
possible termination of employment for reasons of an economic, technological,
structural or similar nature, without prejudice to the efficient operation of
the undertaking, establishment or service, and to mitigate the adverse effects
of any termination of employment for these reasons on the worker or workers
concerned.
(2) Where appropriate, the competent authority should assist the parties in
seeking solutions to the problems raised by the terminations contemplated.
Consultations on Major Changes in the Undertaking
20.(1) When the employer contemplates the introduction of major changes in
production, programme, organisation, structure or technology that are likely
to entail terminations, the employer should consult the workers'
representatives concerned as early as possible on, inter alia, the
introduction of such changes, the effects they are likely to have and the
measures for averting or mitigating the adverse effects of such changes.
(2) To enable the workers' representatives concerned to participate
effectively in the consultations referred to in subparagraph (1) of this
Paragraph, the employer should supply them in good time with all relevant
information on the major changes contemplated and the effects they are likely
to have.
(3) For the purposes of this Paragraph the term "the workers' representatives
concerned" means the workers' representatives recognised as such by national
law or practice, in conformity with the Workers' Representatives Convention,
1971. Measures to Avert or Minimise Termination
21. The measures which should be considered with a view to averting or
minimising terminations of employment for reasons of an economic,
technological, structural or similar nature might include, inter alia,
restriction of hiring, spreading the workforce reduction over a certain period
of time to permit natural reduction of the workforce, internal transfers,
training and retraining, voluntary early retirement with appropriate income
protection, restriction of overtime and reduction of normal hours of work.
22. Where it is considered that a temporary reduction of normal hours of work
would be likely to avert or minimise terminations of employment due to
temporary economic difficulties, consideration should be given to partial
compensation for loss of wages for the normal hours not worked, financed by
methods appropriate under national law and practice. Criteria for Selection
for Termination
23.(1) The selection by the employer of workers whose employment is to be
terminated for reasons of an economic, technological, structural or similar
nature should be made according to criteria, established wherever possible in
advance, which give due weight both to the interests of the undertaking,
establishment or service and to the interests of the workers.
(2) These criteria, their order of priority and their relative weight, should
be determined by the methods of implementation referred to in Paragraph 1 of
this Recommendation. Priority of Rehiring
24.(1) Workers whose employment has been terminated for reasons of an
economic, technological, structural or similar nature, should be given a
certain priority of rehiring if the employer again hires workers with
comparable qualifications, subject to their having, within a given period from
the time of their leaving, expressed a desire to be rehired.
(2) Such priority of rehiring may be limited to a specified period of time.
(3) The criteria for the priority of rehiring, the question of retention of
rights-particularly seniority rights-in the event of rehiring, as well as the
terms governing the wages of rehired workers, should be determined according
to the methods of implementation referred to in Paragraph 1 of this
Recommendation. Mitigating the Effects of Termination
25.(1) In the event of termination of employment for reasons of an economic,
technological, structural or similar nature, the placement of the workers
affected in suitable alternative employment as soon as possible, with training
or retraining where appropriate, should be promoted by measures suitable to
national circumstances, to be taken by the competent authority, where possible
with the collaboration of the employer and the workers' representatives
concerned.
(2) Where possible, the employer should assist the workers affected in the
search for suitable alternative employment, for example through direct
contacts with other employers.
(3) In assisting the workers affected in obtaining suitable alternative
employment or training or retraining, regard may be had to the Human Resources
Development Convention and Recommendation, 1975.
26.(1) With a view to mitigating the adverse effects of termination of
employment for reasons of an economic, technological, structural or similar
nature, consideration should be given to providing income protection during
any course of training or retraining and partial or total reimbursement of
expenses connected with training or retraining and with finding and taking up
employment which requires a change of residence.
(2) The competent authority should consider providing financial resources to
support in full or in part the measures referred to in subparagraph (1) of
this Paragraph, in accordance with national law and practice.
IV. EFFECT ON EARLIER RECOMMENDATION
27. This Recommendation and the Termination of Employment Convention, 1982,
supersede the Termination of Employment Recommendation, 1963.
CONVENTION CONCERNING EQUAL OPPORTUNITIES AND EQUAL TREATMENT
FOR MEN AND WOMEN WORKERS: WORKERS WITH FAMILY RESPONSIBILITIES
SCHEDULE 12 Section 4
The General Conference of the International Labour Organisation, Having been
convened at Geneva by the Governing Body of the International Labour Office
and having met in its Sixty-seventh Session on 3 June 1981, and Noting the
Declaration of Philadelphia concerning the Aims and Purposes of the
International Labour Organisation which recognises that "all human beings,
irrespective of race, creed or sex, have the right to pursue their material
well-being and their spiritual development in conditions of freedom and
dignity, of economic security and equal opportunity", and Noting the terms of
the Declaration on Equality of Opportunity and Treatment for Women Workers and
of the resolution concerning a plan of action with a view to promoting
equality of opportunity and treatment for women workers, adopted by the
International Labour Conference in 1975, and Noting the provisions of
international labour Conventions and Recommendations aimed at ensuring
equality of opportunity and treatment for men and women workers, namely the
Equal Remuneration Convention and Recommendation, 1951, the Discrimination
(Employment and Occupation) Convention and Recommendation, 1958, and Part VIII
of the Human Resources Development Recommendation, 1975, and Recalling that
the Discrimination (Employment and Occupation) Convention, 1958, does not
expressly cover distinctions made on the basis of family responsibilities, and
considering that supplementary standards are necessary in this respect, and
Noting the terms of the Employment (Women with Family Responsibilities)
Recommendation, 1965, and considering the changes which have taken place since
its adoption, and Noting that instruments on equality of opportunity and
treatment for men and women have also been adopted by the United Nations and
other specialised agencies, and recalling, in particular, the fourteenth
paragraph of the Preamble of the United Nations Convention on the Elimination
of All Forms of Discrimination against Women, 1979, to the effect that States
Parties are "aware that a change in the traditional role of men as well as the
role of women in society and in the family is needed to achieve full equality
between men and women", and Recognising that the problems of workers with
family responsibilities are aspects of wider issues regarding the family and
society which should be taken into account in national policies, and
Recognising the need to create effective equality of opportunity and treatment
as between men and women workers with family responsibilities and between such
workers and other workers, and Considering that many of the problems facing
all workers are aggravated in the case of workers with family responsibilities
and recognising the need to improve the conditions of the latter both by
measures responding to their special needs and by measures designed to improve
the conditions of workers in general, and Having decided upon the adoption of
certain proposals with regard to equal opportunities and equal treatment for
men and women workers: workers with family responsibilities, which is the
fifth item on the agenda of the session, and Having determined that these
proposals shall take the form of an international Convention, adopts this
twenty-third day of June of the year one thousand nine hundred and eighty-one
the following Convention, which may be cited as the Workers with Family
Responsibilities Convention, 1981:
Article 1
1. This Convention applies to men and women workers with responsibilities in
relation to their dependent children, where such responsibilities restrict
their possibilities of preparing for, entering, participating in or advancing
in economic activity.
2. The provisions of this Convention shall also be applied to men and women
workers with responsibilities in relation to other members of their immediate
family who clearly need their care or support, where such responsibilities
restrict their possibilities of preparing for, entering, participating in or
advancing in economic activity.
3. For the purposes of this Convention, the terms "dependent child" and "other
member of the immediate family who clearly needs care or support" mean persons
defined as such in each country by one of the means referred to in Article 9
of this Convention.
4. The workers covered by virtue of paragraphs 1 and 2 of this Article are
hereinafter referred to as "workers with family responsibilities".
Article 2
This Convention applies to all branches of economic activity and all
categories of workers.
Article 3
1. With a view to creating effective equality of opportunity and treatment for
men and women workers, each Member shall make it an aim of national policy to
enable persons with family responsibilities who are engaged or wish to engage
in employment to exercise their right to do so without being subject to
discrimination and, to the extent possible, without conflict between their
employment and family responsibilities.
2. For the purposes of paragraph 1 of this Article, the term "discrimination"
means discrimination in employment and occupation as defined by Articles 1 and
5 of the Discrimination (Employment and Occupation) Convention, 1958.
Article 4
With a view to creating effective equality of opportunity and treatment for
men and women workers, all measures compatible with national conditions and
possibilities shall be taken-
(a) to enable workers with family responsibilities to exercise their right
to free choice of employment; and
(b) to take account of their needs in terms and conditions of employment
and in social security.
Article 5
All measures compatible with national conditions and possibilities shall
further be taken-
(a) to take account of the needs of workers with family responsibilities
in community planning; and
(b) to develop or promote community services, public or private, such as
childcare and family services and facilities.
Article 6
The competent authorities and bodies in each country shall take appropriate
measures to promote information and education which engender broader public
understanding of the principle of equality of opportunity and treatment for
men and women workers and of the problems of workers with family
responsibilities, as well as a climate of opinion conducive to overcoming
these problems.
Article 7
All measures compatible with national conditions and possibilities, including
measures in the field of vocational guidance and training, shall be taken to
enable workers with family responsibilities to become and remain integrated in
the labour force, as well as to re-enter the labour force after an absence due
to those responsibilities.
Article 8
Family responsibilities shall not, as such, constitute a valid reason for
termination of employment.
Article 9
The provisions of this Convention may be applied by laws or regulations,
collective agreements, works rules, arbitration awards, court decisions or a
combination of these methods, or in any other manner consistent with national
practice which may be appropriate, account being taken of national conditions.
Article 10
1. The provisions of this Convention may be applied by stages if necessary,
account being taken of national conditions: Provided that such measures of
implementation as are taken shall apply in any case to all the workers covered
by Article 1, paragraph 1.
2. Each Member which ratifies this Convention shall indicate in the first
report on the application of the Convention submitted under article 22 of the
Constitution of the International Labour Organisation in what respect, if any,
it intends to make use of the faculty given by paragraph 1 of this Article,
and shall state in subsequent reports the extent to which effect has been
given or is proposed to be given to the Convention in that respect.
Article 11
Employers' and workers' organisations shall have the right to participate, in
a manner appropriate to national conditions and practice, in devising and
applying measures designed to give effect to the provisions of this
Convention.
Article 12
The formal ratifications of this Convention shall be communicated to the
Director-General of the International Labour Office for registration.
Article 13
1. This Convention shall be binding only upon those Members of the
International Labour Organisation whose ratifications have been registered
with the Director-General.
2. It shall come into force twelve months after the date on which the
ratifications of two Members have been registered with the Director-General.
3. Thereafter, this Convention shall come into force for any Member twelve
months after the date on which its ratification has been registered.
Article 14
1. A Member which has ratified this Convention may denounce it after the
expiration of ten years from the date on which the Convention first comes into
force, by an act communicated to the Director-General of the International
Labour Office for registration. Such denunciation shall not take effect until
one year after the date on which it is registered.
2. Each Member which has ratified this Convention and which does not, within
the year following the expiration of the period of ten years mentioned in the
preceding paragraph, exercise the right of denunciation provided for in this
Article, will be bound for another period of ten years and, thereafter, may
denounce this Convention at the expiration of each period of ten years under
the terms provided for in this Article.
Article 15
1. The Director-General of the International Labour Office shall notify all
Members of the International Labour Organisation of the registration of all
ratifications and denunciations communicated to him by the Members of the
Organisation.
2. When notifying the Members of the Organisation of the registration of the
second ratification communicated to him, the Director-General shall draw the
attention of the Members of the Organisation to the date upon which the
Convention will come into force.
Article 16
The Director-General of the International Labour Office shall communicate to
the Secretary-General of the United Nations for registration in accordance
with Article 102 of the Charter of the United Nations full particulars of all
ratifications and acts of denunciation registered by him in accordance with
the provisions of the preceding Articles.
Article 17
At such times as it may consider necessary the Governing Body of the
International Labour Office shall present to the General Conference a report
on the working of this Convention and shall examine the desirability of
placing on the agenda of the conference the question of its revision in whole
or in part.
Article 18
1. Should the Conference adopt a new Convention revising this Convention in
whole or in part, then, unless the new Convention otherwise provides-
(a) the ratification by a Member of the new revising Convention shall ipso
jure involve the immediate denunciation of this Convention,
notwithstanding the provisions of Article 14 above, if and when the
new revising Convention shall have come into force;
(b) as from the date when the new revising Convention comes into force
this Convention shall cease to be open to ratification by the Members.
2. This Convention shall in any case remain in force in its actual form and
content for those Members which have ratified it but have not ratified the
revising Convention.
Article 19
The English and French versions of the text of this Convention are equally
authoritative. The foregoing is the authentic text of the Convention duly
adopted by the General Conference of the International Labour Organisation
during its Sixty-seventh Session which was held at Geneva and declared closed
the twenty-fourth day of June 1981.
IN FAITH WHEREOF we have appended our signatures this twenty-fifth day of June
1981.
SCHEDULE 13 Section 170KA
RECOMMENDATION No. 165
RECOMMENDATION CONCERNING EQUAL OPPORTUNITIES AND EQUAL TREATMENT
FOR MEN AND WOMEN WORKERS: WORKERS WITH FAMILY RESPONSIBILITIES
The General Conference of the International Labour Organisation, Having been
convened at Geneva by the Governing Body of the International Labour Office
and having met in its Sixty-seventh Session on 3 June 1981, and Noting the
Declaration of Philadelphia concerning the Aims and Purposes of the
International Labour Organisation which recognises that "all human beings,
irrespective of race, creed or sex, have the right to pursue their material
well-being and their spiritual development in conditions of freedom and
dignity, of economic security and equal opportunity", and Noting the terms of
the Declaration on Equality of Opportunity and Treatment for Women Workers and
of the resolution concerning a plan of action with a view to promoting
equality of opportunity and treatment for women workers, adopted by the
International Labour Conference in 1975, and Noting the provisions of
international labour Conventions and Recommendations aimed at ensuring
equality of opportunity and treatment for men and women workers, namely the
Equal Remuneration Convention and Recommendation, 1951, the Discrimination
(Employment and Occupation) Convention and Recommendation, 1958, and Part VIII
of the Human Resources Development Recommendation, 1975, and Recalling that
the Discrimination (Employment and Occupation) Convention, 1958, does not
expressly cover distinctions made on the basis of family responsibilities, and
considering that supplementary standards are necessary in this respect, and
Noting the terms of the Employment (Women with Family Responsibilities)
Recommendation, 965, and considering the changes which have taken place since
its adoption, and Noting that instruments on equality of opportunity and
treatment for men and women have also been adopted by the United Nations and
other specialised agencies, and recalling, in particular, the fourteenth
paragraph of the Preamble of the United Nations Convention on the Elimination
of All Forms of Discrimination against Women, 1979, to the effect that States
Parties are "aware that a change in the traditional role of men as well as the
role of women in society and in the family is needed to achieve full equality
between men and women", and Recognising that the problems of workers with
family responsibilities are aspects of wider issues regarding the family and
society which should be taken into account in national policies, and
Recognising the need to create effective equality of opportunity and treatment
as between men and women workers with family responsibilities and between such
workers and other workers, and Considering that many of the problems facing
all workers are aggravated in the case of workers with family
responsibilities, and recognising the need to improve the conditions of the
latter both by measures responding to their special needs and by measures
designed to improve the conditions of workers in general, and Having decided
upon the adoption of certain proposals with regard to equal opportunities and
equal treatment for men and women workers: workers with family
responsibilities, which is the fifth item on the agenda of the session, and
Having determined that these proposals shall take the form of a
Recommendation,adopts this twenty-third day of June of the year one thousand
nine hundred and eighty-one the following Recommendation, which may be cited
as the Workers with Family Responsibilities Recommendation, 1981:
I. DEFINITION, SCOPE AND MEANS OF IMPLEMENTATION
1.(1) This Recommendation applies to men and women workers with
responsibilities in relation to their dependent children, where such
responsibilities restrict their possibilities of preparing for, entering,
participating in or advancing in economic activity.
(2) The provisions of this Recommendation should also be applied to men and
women workers with responsibilities in relation to other members of their
immediate family who need their care or support, where such responsibilities
restrict their possibilities of preparing for, entering, participating in or
advancing in economic activity.
(3) For the purposes of this Recommendation, the terms "dependent child" and
"other member of the immediate family who needs care or support" mean persons
defined as such in each country by one of the means referred to in Paragraph 3
of this Recommendation.
(4) The workers covered by virtue of subparagraphs (1) and (2) of this
Paragraph are hereinafter referred to as "workers with family
responsibilities".
2. This Recommendation applies to all branches of economic activity and all
categories of workers.
3. The provisions of this Recommendation may be applied by laws or
regulations, collective agreements, works rules, arbitration awards, court
decisions or a combination of these methods, or in any other manner consistent
with national practice which may be appropriate, account being taken of
national conditions.
4. The provisions of this Recommendation may be applied by stages if
necessary, account being taken of national conditions: Provided that such
measures of implementation as are taken should apply in any case to all the
workers covered by Paragraph 1, subparagraph (1).
5. Employers' and workers' organisations should have the right to participate,
in a manner appropriate to national conditions and practice, in devising and
applying measures designed to give effect to the provisions of this
Recommendation.
II. NATIONAL POLICY
6. With a view to creating effective equality of opportunity and treatment for
men and women workers, each Member should make it an aim of national policy to
enable persons with family responsibilities who are engaged or wish to engage
in employment to exercise their right to do so without being subject to
discrimination and, to the extent possible, without conflict between their
employment and family responsibilities.
7. Within the framework of a national policy to promote equality of
opportunity and treatment for men and women workers, measures should be
adopted and applied with a view to preventing direct or indirect
discrimination on the basis of marital status or family responsibilities.
8.(1) For the purposes of Paragraphs 6 and 7 above, the term "discrimination"
means discrimination in employment and occupation as defined by Articles 1 and
5 of the Discrimination (Employment and Occupation) Convention, 1958.
(2) During a transitional period special measures aimed at achieving effective
equality between men and women workers should not be regarded as
discriminatory.
9. With a view to creating effective equality of opportunity and treatment for
men and women workers, all measures compatible with national conditions and
possibilities should be taken-
(a) to enable workers with family responsibilities to exercise their right
to vocational training and to free choice of employment;
(b) to take account of their needs in terms and conditions of employment
and in social security; and
(c) to develop or promote child-care, family and other community services,
public or private, responding to their needs.
10. The competent authorities and bodies in each country should take
appropriate measures to promote information and education which engender
broader public understanding of the principle of equality of opportunity and
treatment for men and women workers and of the problems of workers with family
responsibilities, as well as a climate of opinion conducive to overcoming
these problems.
11. The competent authorities and bodies in each country should take
appropriate measures-
(a) to undertake or promote such research as may be necessary into the
various aspects of the employment of workers with family
responsibilities with a view to providing objective information on
which sound policies and measures may be based; and
(b) to promote such education as will encourage the sharing of family
responsibilities between men and women and enable workers with family
responsibilities better to meet their employment and family
responsibilities.
III. TRAINING AND EMPLOYMENT
12. All measures compatible with national conditions and possibilities should
be taken to enable workers with family responsibilities to become and remain
integrated in the labour force, as well as to re-enter the labour force after
an absence due to those responsibilities.
13. In accordance with national policy and practice, vocational training
facilities and, where possible, paid educational leave arrangements to use
such facilities should be made available to workers with family
responsibilities.
14. Such services as may be necessary to enable workers with family
responsibilities to enter or re-enter employment should be available, within
the framework of existing services for all workers or, in default thereof,
along lines appropriate to national conditions; they should include, free of
charge to the workers, vocational guidance, counselling, information and
placement services which are staffed by suitably trained personnel and are
able to respond adequately to the special needs of workers with family
responsibilities.
15. Workers with family responsibilities should enjoy equality of opportunity
and treatment with other workers in relation to preparation for employment,
access to employment, advancement within employment and employment security.
16. Marital status, family situation or family responsibilities should not, as
such, constitute valid reasons for refusal or termination of employment.
IV. TERMS AND CONDITIONS OF EMPLOYMENT
17. All measures compatible with national conditions and possibilities and
with the legitimate interests of other workers should be taken to ensure that
terms and conditions of employment are such as to enable workers with family
responsibilities to reconcile their employment and family responsibilities.
18. Particular attention should be given to general measures for improving
working conditions and the quality of working life, including measures aiming
at-
(a) the progressive reduction of daily hours of work and the reduction of
overtime, and
(b) more flexible arrangements as regards working schedules, rest periods
and holidays, account being taken of the stage of development and the
particular needs of the country and of different sectors of activity.
19. Whenever practicable and appropriate, the special needs of workers,
including those arising from family responsibilities, should be taken into
account in shift-work arrangements and assignments to night work.
20. Family responsibilities and considerations such as the place of employment
of the spouse and the possibilities of educating children should be taken into
account when transferring workers from one locality to another.
21.(1) With a view to protecting part-time workers, temporary workers and
homeworkers, many of whom have family responsibilities, the terms and
conditions on which these types of employment are performed should be
adequately regulated and supervised.
(2) The terms and conditions of employment, including social security
coverage, of part-time workers and temporary workers should be, to the extent
possible, equivalent to those of full-time and permanent workers respectively;
in appropriate cases, their entitlement may be calculated on a pro rata basis.
(3) Part-time workers should be given the option to obtain or return to
full-time employment when a vacancy exists and when the circumstances which
determined assignment to part-time employment no longer exist.
22.(1) Either parent should have the possibility, within a period immediately
following maternity leave, of obtaining leave of absence (parental leave),
without relinquishing employment and with rights resulting from employment
being safeguarded.
(2) The length of the period following maternity leave and the duration and
conditions of the leave of absence referred to in subparagraph (1) of this
Paragraph should be determined in each country by one of the means referred to
in Paragraph 3 of this Recommendation.
(3) The leave of absence referred to in subparagraph (1) of this Paragraph may
be introduced gradually.
23.(1) It should be possible for a worker, man or woman, with family
responsibilities in relation to a dependent child to obtain leave of absence
in the case of its illness.
(2) It should be possible for a worker with family responsibilities to obtain
leave of absence in the case of the illness of another member of the worker's
immediate family who needs that worker's care or support.
(3) The duration and conditions of the leave of absence referred to in
subparagraphs (1) and (2) of this Paragraph should be determined in each
country by one of the means referred to in Paragraph 3 of this Recommendation.
V. CHILD-CARE AND FAMILY SERVICES AND FACILITIES
24. With a view to determining the scope and character of the child-care and
family services and facilities needed to assist workers with family
responsibilities to meet their employment and family responsibilities, the
competent authorities should, in co-operation with the public and private
organisations concerned, in particular employers' and workers' organisations,
and within the scope of their resources for collecting information, take such
measures as may be necessary and appropriate-
(a) to collect and publish adequate statistics on the number of workers
with family responsibilities engaged in or seeking employment and on
the number and age of their children and of other dependants requiring
care; and
(b) to ascertain, through systematic surveys conducted more particularly
in local communities, the needs and preferences for child- care and
family services and facilities.
25. The competent authorities should, in co-operation with the public and
private organisations concerned, take appropriate steps to ensure that
child-care and family services and facilities meet the needs and preferences
so revealed; to this end they should, taking account of national and local
circumstances ad possibilities, in particular-
(a) encourage and facilitate the establishment, particularly in local
communities, of plans for the systematic development of child-care and
family services and facilities, and
(b) themselves organise or encourage and facilitate the provision of
adequate and appropriate child-care and family services and
facilities, free of charge or at a reasonable charge in accordance
with the workers' ability to pay, developed along flexible lines and
meeting the needs of children of different ages, of other dependants
requiring care and of workers with family responsibilities.
26.(1) Child-care and family services and facilities of all types should
comply with standards laid down and supervised by the competent authorities.
(2) Such standards should prescribe in particular the equipment and hygienic
and technical requirements of the services and facilities provided and the
number and qualifications of the staff.
(3) The competent authorities should provide or help to ensure the provision
of adequate training at various levels for the personnel needed to staff
child-care and family services and facilities.
VI. SOCIAL SECURITY
27. Social security benefits, tax relief, or other appropriate measures
consistent with national policy should, when necessary, be available to
workers with family responsibilities.
28. During the leave of absence referred to in Paragraphs 22 and 23, the
workers concerned may, in conformity with national conditions and practice,
and by one of the means referred to in Paragraph 3 of this Recommendation, be
protected by social security.
29. A worker should not be excluded from social security coverage by reference
to the occupational activity of his or her spouse and entitlement to benefits
arising from that activity.
30.(1) The family responsibilities of a worker should be an element to be
taken into account in determining whether employment offered is suitable in
the sense that refusal of the offer may lead to loss or suspension of
unemployment benefit.
(2) In particular, where the employment offered involves moving to another
locality, the considerations to be taken into account should include the place
of employment of the spouse and the possibilities of educating children.
31. In applying Paragraphs 27 to 30 of this Recommendation, a Member whose
economy is insufficiently developed may take account of the national resources
and social security arrangements available.
VII. HELP IN EXERCISE OF FAMILY RESPONSIBILITIES
32. The competent authorities and bodies in each country should promote such
public and private action as is possible to lighten the burden deriving from
the family responsibilities of workers.
33. All measures compatible with national conditions and possibilities should
be taken to develop home-help and home-care services which are adequately
regulated and supervised and which can provide workers with family
responsibilities, as necessary, with qualified assistance at a reasonable
charge in accordance with their ability to pay.
34. Since many measures designed to improve the conditions of workers in
general can have a favourable impact on those of workers with family
responsibilities, the competent authorities and bodies in each country should
promote such public and private action as is possible to make the provision of
services in the community, such as public transport, supply of water and
energy in or near workers' housing and housing with labour-saving layout,
responsive to the needs of workers.
VIII. EFFECT ON EXISTING RECOMMENDATIONS
35. This Recommendation supersedes the Employment (Women with Family
Responsibilities) Recommendation, 1965.
SCHEDULE 14 Section 170KB
PARENTAL LEAVE
PART 1-PRELIMINARY
Basic Principles
1.(1) Under this Schedule, an employee who gives birth to a child, and that
employee's spouse, are entitled to unpaid parental leave totalling 52 weeks to
care for the newborn child.
(2) However, an employee's entitlement to leave under this Schedule is reduced
by his or her other parental leave entitlements (for example, under an award
or under a State law).
(3) To obtain parental leave under this Schedule, an employee must satisfy
requirements relating to:
(a) length of service;
(b) notice periods;
(c) information and documentation.
(4) Except for a period of one week at the time of the birth, an employee and
his or her spouse must take parental leave at different times.
(5) An employee may take other leave (for example, annual leave) in
conjunction with parental leave, but this will reduce the amount of parental
leave he or she may take.
(6) Parental leave may be varied in certain circumstances. In general, if a
variation is foreseeable, an employee must give notice of it, but if a
variation is not foreseeable notice is not required (for example, in the case
of a premature birth).
(7) Cancellation of parental leave by the employer is limited to situations
where the employee will not become, or ceases to be, the child's primary
care-giver, or where there has been a mistake in calculating the amount of
leave to which the employee is entitled.
(8) An employee who takes parental leave is, in most circumstances, entitled
to return to the position which he or she held before the leave was taken.
(9) Parental leave does not break an employee's continuity of service.
Definitions
2. In this Schedule:
"employee" includes a part-time employee, but not a casual or seasonal
employee;
"continuous service" means service (otherwise than as a casual or seasonal
employee) under an unbroken contract of employment, and includes a period of
leave, or a period of absence, authorised:
(a) by the employer; or
(b) by an award or order of a court or tribunal that has power to fix
wages and other terms and conditions of employment, or a workplace
agreement certified by such a body; or
(c) by a contract of employment; or
(d) by this Schedule or another law of the Commonwealth or of a State or a
Territory;
"law" includes an unwritten law;
"long paternity leave" means Schedule 14 long paternity leave or any other
leave (however described):
(a) to which an employee is entitled, or that has been applied for by or
granted to an employee, in respect of the birth of a child of his
spouse, otherwise than under this Schedule (for example, under another
law of the Commonwealth or of a State or Territory, or under an award,
order or agreement); and
(b) that is of a kind analogous to Schedule 14 long paternity leave, or
would be of such a kind but for one or more of the following:
(i) it is paid leave;
(ii) differences in the rules governing eligibility for it;
(iii) differences in the period or periods for which it can be taken;
"maternity leave" means Schedule 14 maternity leave or any other leave
(however described):
(a) to which an employee is entitled, or that has been applied for by or
granted to an employee, in respect of her pregnancy or the birth of
her child, otherwise than under this Schedule (for example, under
another law of the Commonwealth or of a State or Territory, or under
an award, order or agreement); and
(b) that is of a kind analogous to Schedule 14 maternity leave, or would
be of such a kind but for one or more of the following:
(i) it is paid leave;
(ii) it can begin before the estimated date of birth;
(iii) differences in the rules governing eligibility for it;
(iv) differences in the period or periods for which it can be taken;
"medical certificate" means a certificate signed by a registered medical
practitioner;
"parental leave" means maternity leave or paternity leave;
"paternity leave" means short paternity leave or long paternity leave; "short
paternity leave" means Schedule 14 short paternity leave or any other leave
(however described):
(a) to which an employee is entitled, or that has been applied for by or
granted to an employee, in respect of the birth of a child of his
spouse, otherwise than under this Schedule (for example, under another
law of the Commonwealth or of a State or Territory, or under an award,
order or agreement); and
(b) that is of a kind analogous to Schedule 14 short paternity leave, or
would be of such a kind but for one or more of the following:
(i) it is paid leave;
(ii) differences in the rules governing eligibility for it;
(iii) differences in the period or periods for which it can be taken;
"Schedule 14 long paternity leave" has the meaning given by clause 13;
"Schedule 14 maternity leave" has the meaning given by subclause 3(1);
"Schedule 14 short paternity leave" has the meaning given by clause 13;
"spouse", in relation to an employee, includes a person of the opposite sex to
the employee who lives with the employee in a marriage-like relationship,
although not legally married to the employee.
PART 2-MATERNITY LEAVE Entitlement to maternity leave
3.(1) Subject to this Schedule, an employee who becomes pregnant is entitled
to a single period of unpaid leave ("Schedule 14 maternity leave") in respect
of the birth of the child.
(2) An employer must grant Schedule 14 maternity leave to an employee in
accordance with clause 4 if:
(a) at least 10 weeks before the estimated date of birth, she notifies the
employer in writing of that date; and
(b) she applies in writing for the leave; and
(c) the application specifies the first and last days of the period of
leave; and
(d) the first day of the period of leave is the estimated date of birth or
a later day; and
(e) she submits the application at least 4 weeks before the first day of
the period of leave; and
(f) she submits with the application a medical certificate that:
(i) states that she is pregnant and specifies the estimated date of
birth; or
(ii) states that she has given birth to a living child and specifies
the date of birth; as the case requires; and
(g) she submits with the application a statutory declaration specifying:
(i) any period of short paternity leave for which her spouse
intends to apply, or has applied, in respect of the birth of
the child; and
(ii) the first and last days of any period of long paternity leave
for which her spouse intends to apply, or has applied, in
respect of the birth of the child; and
(iii) the first and last days of each period of annual leave, or long
service leave, for which her spouse intends to apply, or has
applied, instead of, or in conjunction with, such paternity
leave; and stating:
(iv) that she will be the child's primary care-giver throughout the
period of maternity leave; and
(v) that she will not engage in any conduct inconsistent with her
contract of employment while on maternity leave; and
(h) it is reasonable to expect that she will complete, or she had
completed, as the case requires, a period of at least 12 months
continuous service with the employer on the day before the date
notified under paragraph (a).
(3) Paragraphs (2)(a) and (h) do not apply if:
(a) because the child was premature, or for some other compelling reason,
it was not reasonably practicable for the employee to comply with
paragraph (2)(a); and
(b) if it was reasonably practicable for the employee to give to the
employer, before the actual date of birth, written notice of the
estimated date of birth-she did so as soon as reasonably practicable;
and
(c) otherwise-the medical certificate submitted under paragraph (2)(f)
also specifies the date that, as at the 70th day before the actual
date of birth, was the estimated date of birth; and
(d) it is reasonable to expect that the employee will complete, or the
employee had completed, as the case requires, 12 months continuous
service with the employer on the day before the date notified under
paragraph (b), or specified under paragraph (c), of this subclause.
(4) Paragraph (2)(e) does not apply if:
(a) because the child was premature, or for some other compelling reason,
it was not reasonably practicable for the employee to comply with that
paragraph; and
(b) the employee submits the application as soon as reasonably practicable
before, on or after the first day of the period of leave; and
(c) if the child is born before the employee submits the application-the
first day of the period of leave is the date of the child's birth or a
later day. If paragraph (c) of this subclause applies, paragraph
(2)(d) does not apply.
(5) If, because of paragraph (4)(c), the first day of the period of leave is
earlier than the date notified under paragraph (2)(a) or (3)(b) or specified
under paragraph (3)(c), a reference in paragraph (2)(h) or (3)(d) or clause 9
to 12 months continuous service is taken to be a reference to a period of
continuous service equal to 12 months reduced by the period beginning on the
first day of the period of leave and ending on that date.
(6) If an employee applies under subclause (2) for maternity leave ("the
substitute leave") to be taken instead of maternity leave ("the original
leave") for which she has already applied under that subclause, then:
(a) if a document submitted with the application for the original leave
complies with paragraph (2)(f) or (g) as applying in relation to the
application for the substitute leave, the document is taken to have
also been submitted with the latter application; and
(b) if the employer grants the substitute leave, the employer:
(i) must cancel the original leave if it has already been granted;
or
(ii) must not grant it if it has not already been granted. What
maternity leave must the employer grant?
4. 1) The period of Schedule 14 maternity leave that clause 3 requires an
employer to grant to an employee:
(a) if the child has not yet been born-must begin on the later of:
(i) the day specified in the application as the first day of the
period of leave; or
(ii) the estimated date of birth; and must not extend beyond the
first anniversary of the estimated date of birth; and
(b) otherwise-must begin on the later of:
(i) the day specified in the application as the first day of the
period of leave; or
(ii) the child's date of birth; and must not extend beyond the
child's first birthday; and
(c) must not overlap with a period of leave (other than short paternity
leave) specified in the relevant statutory declaration; and
(d) subject to the preceding paragraphs, must be a continuous period equal
to the shorter of:
(i) the period applied for;
(ii) the period of entitlement.
(2) The period of entitlement is 52 weeks less the total of:
(a) each period of unpaid leave, or paid sick leave, other than maternity
leave, that the employer has already granted to the employee in
respect of the same pregnancy; and
(b) each period of annual leave, or long service leave, that the employee
has applied for instead of, or in conjunction with, maternity leave in
respect of the pregnancy; and
(c) each period of leave specified in the relevant statutory declaration.
Entitlement under clauses 3 and 4 to be reduced by other maternity
leave available to employee
5.(1) This section applies if, had this Schedule not been enacted:
(a) an employee could have applied, in respect of her pregnancy or the
birth of her child, for maternity leave to which paragraphs (a) and
(b) of the definition of "maternity leave" in clause 2 applies; and
(b) if she had so applied in accordance with the rules governing that
maternity leave, she would have a legally enforceable right to a
period of such leave; whether or not she has in fact so applied.
(2) The period of leave referred to in paragraph (1)(b) is called "the period
of alternative leave".
(3) The period (if any) of Schedule 14 maternity leave that clauses 3 and 4
would, but for this clause, require the employer to grant to the employee in
respect of the birth of the child is called "the unadjusted period of
maternity leave".
(4) If the period of alternative leave is as long as, or longer than, the
unadjusted period of maternity leave, the employer must not grant maternity
leave to the employee under clauses 3 and 4 in respect of the birth.
(5) Otherwise, the employer must grant to the employee, instead of the
unadjusted period of maternity leave, a period of maternity leave that:
(a) equals the difference between the unadjusted period of maternity leave
and the period of alternative leave; and
(b) begins immediately after the period of alternative leave if the
employer grants it; and
(c) in other respects complies with clause 4. Note: This clause assumes
that an employee will make a single application for a composite period
of parental leave to which she is entitled, and that the application
will be made in accordance with both this Schedule and the rules
governing the other kind of parental leave for which the employee is
applying. Taking annual leave or long service leave instead of, or in
conjunction with, maternity leave
6. If an employee ("the mother") applies to take annual leave, or long service
leave, instead of, or in conjunction with, Schedule 14 maternity leave, the
employer must grant the annual leave or long service leave if:
(a) had this Schedule not been enacted, the employer would have been
obliged to grant it (for example, because of some other law of the
Commonwealth or of a State or Territory); or
(b) the total of the following does not exceed 52 weeks:
(i) the period of annual leave or long service leave;
(ii) each period of annual leave, or long service leave, that the
employer has already granted to the mother instead of, or in
conjunction with, the maternity leave;
(iii) the period of maternity leave;
(iv) each period of unpaid leave, or paid sick leave, other than
maternity leave, that the employer has already granted to the
mother in respect of the same pregnancy;
(v) each period of leave specified under paragraph 3(2)(g) in the
relevant statutory declaration. Extension of maternity leave
7.(1) An employee may apply in writing for an extension of Schedule 14
maternity leave granted to her.
(2) The employer must grant the application if:
(a) it is given to the employer at least 14 days before the last day of
the period of leave; and
(b) it specifies the first or last day of the extended period of leave, as
the case requires; and
(c) unless the matters referred to in subparagraphs 3(2)(g)(i), (ii) and
(iii) are still as stated in the relevant statutory declaration-the
employee submits with the application for the extension a statutory
declaration stating the matters referred to in those subparagraphs;
and
(d) the period of leave, if extended in accordance with the application,
would not exceed the period of entitlement under clause 4, calculated
as at the time of granting the application for the extension.
(3) The period of maternity leave may be extended again only by agreement
between the employer and the employee. Shortening of maternity leave
8.(1) An employee may apply in writing to shorten the period of Schedule 14
maternity leave granted to her.
(2) The employer may grant the application if it specifies the last day of the
shortened period of leave. Effect on maternity leave of failure to complete 12
months continuous service
9. If Schedule 14 maternity leave has been granted on the basis that it is
reasonable to expect that the employee will complete a period of at least 12
months continuous service with the employer on a particular day, the employer
may cancel the leave if the employee does not complete such a period on that
day. Effect on maternity leave if pregnancy terminates or child dies
10.(1) This clause applies if an employer has granted Schedule 14 maternity
leave to an employee and:
(a) the pregnancy terminates otherwise than by the birth of a living
child; or
(b) the employee gives birth to a living child but the child later dies.
(2) The employer may cancel the maternity leave at any time before it begins.
(3) If the maternity leave has begun, the employee may notify the employer in
writing that she wishes to return to work.
(4) If she does so, the employer must notify her in writing of the day on
which she is to return to work. That day must be within 4 weeks after the
employer received the notice under subclause (3).
(5) If the maternity leave has begun, the employer may notify the employee in
writing that she must return to work on a specified day that is not less than
4 weeks after the notice is given.
(6) If the employee returns to work, the employer must cancel the rest of the
maternity leave. Effect on maternity leave if mother ceases to be the primary
care-giver
11.(1) This clause applies if:
(a) during a substantial period beginning on or after the beginning of an
employee's Schedule 14 maternity leave, the employee is not the
child's primary care-giver; and
(b) having regard to the length of that period and to any other relevant
circumstances, it is reasonable to expect that the employee will not
again become the child's primary care-giver within a reasonable
period.
(2) The employer may notify the employee in writing that she must return to
work on a specified day that is not less than 4 weeks after the notice is
given.
(3) If the employee returns to work, the employer must cancel the rest of the
maternity leave. Return to work after maternity leave
12.(1) This clause applies when an employee returns to work after a period of
Schedule 14 maternity leave.
(2) The employer must employ her in the position she held:
(a) if she was transferred to a safe job because of her pregnancy-
mmediately before the transfer; or
(b) if she began working part-time because of the pregnancy-immediately
before she so began; or
(c) otherwise-immediately before she began maternity leave.
(3) If that position no longer exists but she is qualified for, and can
perform the duties of, other positions in the employer's employment, the
employer must employ her in whichever of those positions is nearest in status
and remuneration to the position referred to in subclause (2).
PART 3-PATERNITY LEAVE Entitlement to paternity leave
13. Subject to this Schedule, an employee is entitled, in respect of the birth
of a child of his spouse, to each of the following:
(a) a period of unpaid paternity leave ("Schedule 14 short paternity
leave") beginning on the child's date of birth and lasting not more
than one week;
(b) a period of unpaid paternity leave ("Schedule 14 long paternity
leave") in order to be the child's primary care-giver. Short paternity
leave
14.(1) An employer must grant Schedule 14 short paternity leave to an employee
if:
(a) at least 10 weeks before the estimated date of birth, he gives to the
employer:
(i) a written notice stating his intention to apply for the leave
and specifying how long the leave is to last, being a period of
not more than one week; and
(ii) a medical certificate that names his spouse, states that she is
pregnant and specifies the estimated date of birth; and
(b) he applies in writing for the leave; and
(c) the application specifies the first and last days of the period of
leave; and
(d) he submits the application as soon as reasonably practicable on or
after the first day of the period of leave; and
(e) the period of leave does not exceed the period specified under
paragraph (a); and
(f) unless the first day of the period of leave is the same as the date
specified under subparagraph (a)(ii):
(i) he submits with the application a medical certificate that
names his spouse and specifies the actual date of birth; and
(ii) the first day of the period of leave is that day; and
(g) it is reasonable to expect that he will complete, or he had completed,
as the case requires, a period of at least 12 months continuous
service with the employer on the day before the date specified under
subparagraph (a)(ii).
(2) Paragraphs (1)(a) and (g) do not apply if:
(a) because the child was premature, or for some other compelling reason,
it was not reasonably practicable for the employee to comply with
paragraph (1)(a); and
(b) if it was reasonably practicable for the employee to give to the
employer, before the actual date of birth, the notice and certificate
referred to in that paragraph-he did so as soon as reasonably
practicable; and
(c) otherwise-the medical certificate submitted under subparagraph
(1)(f)(i) also specifies the date that, as at the 70th day before the
actual date of birth, was the estimated date of birth; and
(d) it is reasonable to expect that the employee will complete, or the
employee had completed, as the case requires, 12 months continuous
service with the employer on the day before the estimated date of
birth specified in the certificate given under paragraph (b), or
specified under paragraph (c), of this subclause. Long paternity leave
15.(1) An employer must grant Schedule 14 long paternity leave to an employee
if:
(a) he applies in writing for the leave; and
(b) the application specifies the first and last days of the period of
leave; and
(c) he submits the application at least 10 weeks before the first day of
the period of leave; and
(d) he submits with the application a medical certificate that names his
spouse and:
(i) states that she is pregnant and specifies the estimated date of
birth; or
(ii) states that she has given birth to a living child and specifies
the date of birth; as the case requires; and
(e) he submits with the application a statutory declaration specifying the
first and last days of:
(i) each period of unpaid leave, or paid sick leave, other than
maternity leave, for which the spouse intends to apply, or has
applied, in respect of the pregnancy; and
(ii) any period of maternity leave for which the spouse intends to
apply, or has applied, in respect of the birth of the child;
and
(iii) each period of annual leave, or long service leave, for which
the spouse intends to apply, or has applied, instead of, or in
conjunction with, maternity leave; and stating:
(iv) that he will be the child's primary care-giver throughout the
period of paternity leave; and
(v) that he will not engage in any conduct inconsistent with his contract
of employment while on paternity leave; and
(f) it is reasonable to expect that he will complete, or he had completed,
as the case requires, a period of at least 12 months continuous
service with the employer on the day before the first day of the
period of leave.
(2) Paragraph (1)(c) does not apply if:
(a) because the child was premature, or for some other compelling reason,
it was not reasonably practicable for the employee to submit the
application at least 10 weeks before the first day of the period of
leave; and
(b) the employee submits the application as soon as reasonably practicable
before, on or after that day.
(3) The period of Schedule 14 long paternity leave:
(a) if the child has not yet been born-must begin on the later of:
(i) the day specified in the application as the first day of the
period of leave; or
(ii) the estimated date of birth; and must not extend beyond the
first anniversary of the estimated date of birth; and
(b) otherwise-must begin on the later of:
(i) the day specified in the application as the first day of the
period of leave; or
(ii) the child's date of birth; and must not extend beyond the
child's first birthday; and
(c) must not overlap with a period of leave specified in the relevant
statutory declaration; and
(d) subject to the preceding paragraphs, must be a continuous period equal
to the shorter of:
(i) the period applied for;
(ii) the period of entitlement.
(4) The period of entitlement is 52 weeks less the total of:
(a) if the employee has given the employer notice of his intention to
apply for a period of short paternity leave in respect of the birth of
the child-that period; and
(b) each period of annual leave, or long service leave, that the employee
has applied to take instead of, or in conjunction with, long paternity
leave in respect of the birth of the child; and
(c) each period of leave specified in the relevant statutory declaration.
Entitlement under clause 14 or 15 to be reduced by other paternity
leave available to employee 16.(1) This clause applies if, had this
Schedule not been enacted:
(a) an employee could have applied, in respect of the birth of a child of
his spouse, for short paternity leave or long paternity leave to which
paragraphs (a) and (b) of the definition of "short paternity leave" or
"long paternity leave", as the case may be, in clause 2 apply; and
(b) if he had so applied in accordance with the rules governing that
paternity leave, he would have a legally enforceable right to a period
of such leave; whether or not he has in fact so applied.
(2) The period of leave referred to in paragraph (1)(b) is called "the period
of alternative leave".
(3) The period of Schedule 14 short paternity leave or Schedule 14 long
paternity leave, as the case may be, that clause 14 or 15 would, but for this
clause, require the employer to grant to the employee in respect of the birth
of the child is called the "unadjusted period of paternity leave".
(4) If the period of alternative leave is as long as, or longer than, the
unadjusted period of paternity leave, the employer must not grant leave under
clause 14 or 15, as the case may be, in respect of the birth.
(5) Otherwise, the employer must grant to the employee, instead of the
unadjusted period of paternity leave, a period of short paternity leave, or
long paternity leave, as the case may be, that:
(a) equals the difference between the unadjusted period of paternity leave
and the period of alternative leave; and
(b) begins immediately after the period of alternative leave if the
employer grants it; and
(c) in other respects complies with clause 14 or 15, as the case may be.
Note: This clause assumes that an employee will make a single
application for a composite period of parental leave to which he is
entitled, and that the application will be made in accordance with
both this Schedule and the rules governing the other kind of parental
leave for which the employee is applying.aking annual leave or long
service leave instead of, or in conjunction with, paternity leave
17. If an employee applies to take annual leave, or long service leave,
instead of, or in conjunction with, Schedule 14 short paternity leave or
Schedule 14 long paternity leave in respect of the birth of a child of the
employee's spouse, the employer must grant the annual leave or long service
leave if:
(a) had this Schedule not been enacted, the employer would have been
obliged to grant it (for example, because of some other law of the
Commonwealth or of a State or a Territory); or
(b) the total of the following does not exceed 52 weeks:
(i) the period of annual leave or long service leave;
(ii) each period of annual leave, or long service leave, that the
employer has already granted to the employee instead of, or in
conjunction with, the paternity leave;
(iii) each period of paternity leave that the employer has already
granted to the employee in respect of the birth;
(iv) each period of leave specified under paragraph 15(1)(e) in the
relevant statutory declaration. Extension of long paternity
leave
18.(1) An employee may apply in writing for an extension of Schedule 14 long
paternity leave granted to him.
(2) The employer must grant the application if:
(a) it is given to the employer at least 14 days before the last day of
the period of leave; and
(b) it specifies the last day of the extended period of leave; and
(c) unless the matters referred to in subparagraphs 15(1)(e)(i), (ii) and
(iii) are still as stated in the statutory declaration submitted with
the application for the leave-the employee submits with the
application for the extension a statutory declaration stating the
matters referred to in those subparagraphs; and
(d) the period of leave, if extended in accordance with the application,
would not exceed the period of entitlement under subclause 15(4),
calculated as at the time of granting the application for the
extension.
(3) The period of paternity leave may be extended again only by agreement
between the employer and the employee. Shortening of paternity leave
19.(1) An employee may apply in writing to shorten the period of Schedule 14
paternity leave granted to him.
(2) The employer may grant the application if it specifies the last day of the
shortened period of leave. Effect on long paternity leave of failure to
complete 12 months continuous service
20. If Schedule 14 long paternity leave has been granted on the basis that it
is reasonable to expect that the employee will complete a period of at least
12 months continuous service with the employer on a particular day, the
employer may cancel the leave if the employee does not complete such a period
on that day. Effect on long paternity leave if pregnancy terminates or child
dies
21.(1) This clause applies if an employer has granted Schedule 14 long
paternity leave to an employee and:
(a) the employee's spouse's pregnancy terminates otherwise than by the
birth of a living child; or
(b) the employee's spouse gives birth to a living child but the child
later dies.
(2) The employer may cancel the leave at any time before it begins.
(3) If the leave has begun, the employee may notify the employer in writing
that he wishes to return to work.
(4) If he does so, the employer must notify him in writing of the day on which
he is to return to work. That day must be within 4 weeks after the employer
received the notice under subclause (3).
(5) If the leave has begun, the employer may notify the employee in writing
that he must return to work on a specified day that is not less than 4 weeks
after the notice is given.
(6) If the employee returns to work, the employer must cancel the rest of the
leave. Effect on paternity leave of ceasing to be the primary care-giver
22.(1) This clause applies if:
(a) during a substantial period beginning on or after the beginning of an
employee's Schedule 14 long paternity leave, the employee is not the
child's primary care-giver; and
(b) having regard to the length of that period and to any other relevant
circumstances, it is reasonable to expect that the employee will not
again become the child's primary care-giver within a reasonable
period.
(2) The employer may notify the employee in writing that he must return to
work on a specified day that is not less than 4 weeks after the notice is
given.
(3) If the employee returns to work, the employer must cancel the rest of the
leave. Return to work after paternity leave
23.(1) This clause applies when an employee returns to work after a period of
Schedule 14 long paternity leave.
(2) The employer must employ him in the position he held immediately before
that period.
(3) If that position no longer exists but he is qualified for, and can perform
the duties of, other positions in the employer's employment, the employer must
employ him in whichever of those positions is nearest in status and
remuneration to the position referred to in subclause (2).
PART 4-GENERAL
Employee's duty if excessive leave granted or if maternity leave and paternity
leave overlap
24.(1) This clause applies if the total of the following exceeds 52 weeks:
(a) any period of maternity leave granted by an employer to an employee
("the mother") in respect of a pregnancy;
(b) each period of annual leave or long service leave granted by the
employer to the mother instead of, or in conjunction with, such
maternity leave;
(c) each period of unpaid leave, or paid sick leave, other than maternity
leave, granted by the employer to the mother in respect of the same
pregnancy;
(d) each period of paternity leave granted by an employer to the mother's
spouse in respect of the birth of the child;
(e) each period of annual leave or long service leave granted, by the
employer referred to in paragraph (e), to the mother's spouse instead
of, or in conjunction with, such paternity leave.
(2) This clause also applies if a period of leave of a kind referred to in
paragraph (1)(a), (b) or (c) overlaps with a period of leave of a kind
referred to in paragraph (1)(d) or (e).
(3) The mother must give to her employer a written notice that:
(a) if subclause (1) applies-states that the total exceeds 52 weeks and
specifies the amount of the excess; and
(b) if subclause (2) applies-specifies the period of overlap; and
(c) sets out how she suggests the employer vary or cancel leave granted to
her (except in so far as she has already taken it) so as to reduce or
remove the excess or overlap; and
(d) unless the variations and cancellations suggested under paragraph (c)
will remove the excess or overlap-sets out the suggestions her spouse
has made or will make under paragraph (4)(c).
(4) The mother's spouse must give to his employer a written notice that:
(a) if subclause (1) applies-states that the total exceeds 52 weeks and
specifies the amount of the excess; and
(b) if subclause (2) applies-specifies the period of overlap; and
(c) sets out how he suggests the employer vary or cancel leave granted to
him (except in so far as he has already taken the leave) so as to
remove the excess or overlap; and
(d) unless the variations or cancellations suggested under paragraph (c)
will remove the excess or overlap-specifies the suggestions that the
mother has made or will make under paragraph (3)(c).
(5) The variations and cancellations suggested under this clause must be such
that, if they are all made, the excess or overlap will be removed.
(6) An employer who receives a notice under subclause (3) or (4) may vary or
cancel periods of leave as suggested in the notice, or as agreed with the
mother or her spouse, as the case may be. Employer to warn replacement
employee that employment is only temporary
25. An employer must not employ a person:
(a) to replace an employee while he or she is on parental leave; or
(b) to replace an employee who, while another employee is on parental
leave, is to perform the duties of the position held by the other
employee; unless the employer has informed the person:
(c) that his or her employment is only temporary; and
(d) about the rights of the employee who is on parental leave. Parental
leave and continuity of service
26. A period of parental leave does not break an employee's continuity of
service, but does not otherwise count as service except:
(a) for the purpose of determining the employee's entitlement to a later
period of parental leave; or
(b) as expressly provided in a law of the Commonwealth or of a State or
Territory, or in an award, order, agreement or instrument; or
(c) as prescribed by the regulations. Effect of Schedule on other laws
27. To avoid doubt, this Schedule has effect despite:
(a) a law of a State or Territory; or
(b) an award, order, agreement or instrument; but is not intended to
exclude or limit the operation of such a law, or of an award, order,
agreement or instrument, in so far as that law, award, order,
agreement or instrument can operate concurrently with this Schedule.
SCHEDULE 15 Section 170PA
PREAMBLE, AND PARTS I AND II, OF THE CONVENTION
CONCERNING FREEDOM OF ASSOCIATION AND PROTECTION
OF THE RIGHT TO ORGANISE
The General Conference of the International Labour Organisation, Having been
convened at San Francisco by the Governing Body of the International Labour
Office, and having met in its Thirty-first Session on 17 June 1948; Having
decided to adopt, in the form of a Convention, certain proposals concerning
freedom of association and protection of the right to organise, which is the
seventh item on the agenda of the session; Considering that the Preamble to
the Constitution of the International Labour Organisation declares
"recognition of the principle of freedom of association" to be a means of
improving conditions of labour and of establishing peace; Considering that the
Declaration of Philadelphia reaffirms that "freedom of expression and of
association are essential to sustained progress"; Considering that the
International Labour Conference, at its Thirtieth Session, unanimously adopted
the principles which should form the basis for international regulation;
Considering that the General Assembly of the United Nations, at its Second
Session, endorsed these principles and requested the International Labour
Organisation to continue every effort in order that it may be possible to
adopt one or several international Conventions; adopts this ninth day of July
of the year one thousand nine hundred and forty-eight the following
Convention, which may be cited as the Freedom of Association and Protection of
the Right to Organise Convention, 1948:
PART I. FREEDOM OF ASSOCIATION
Article 1
1. Each Member of the International Labour Organisation for which this
Convention is in force undertakes to give effect to the following provisions.
Article 2
Workers and employers, without distinction whatsoever, shall have the right to
establish and, subject only to the rules of the organisation concerned, to
join organisations of their own choosing without previous authorisation.
Article 3
1. Workers' and employers' organisations shall have the right to draw up their
constitutions and rules, to elect their representatives in full freedom, to
organise their administration and activities and to formulate their
programmes.
2. The public authorities shall refrain from any interference which would
restrict this right or impede the lawful exercise thereof.
Article 4
Workers' and employers' organisations shall not be liable to be dissolved or
suspended by administrative authority.
Article 5
Workers' and employers' organisations shall have the right to establish and
join federations and confederations and any such organisation, federation or
confederation shall have the right to affiliate with international
organisations of workers and employers.
Article 6
The provisions of Articles 2, 3 and 4 hereof apply to federations and
confederations of workers' and employers' organisations.
Article 7
The acquisition of legal personality by workers' and employers' organisations,
federations and confederations shall not be made subject to conditions of such
a character as to restrict the application of the provisions of Articles 2, 3
and 4 hereof.
Article 8
1. In exercising the rights provided for in this Convention workers and
employers and their respective organisations, like other persons or organised
collectivities, shall respect the law of the land.
2. The law of the land shall not be such as to impair, nor shall it be so
applied as to impair, the guarantees provided for in this Convention.
Article 9
1. The extent to which the guarantees provided for in this Convention shall
apply to the armed forces and the police shall be determined by national laws
or regulations.
2. In accordance with the principle set forth in paragraph 8 of article 19 of
the Constitution of the International Labour Organisation the ratification of
this Convention by any Member shall not be deemed to affect any existing law,
award, custom or agreement in virtue of which members of the armed forces or
the police enjoy any right guaranteed by this Convention.
Article 10
In this Convention the term "organisation" means any organisation of workers
or of employers for furthering and defending the interests of workers or of
employers.
PART II. PROTECTION OF THE RIGHT TO ORGANISE
Article 11
Each Member of the International Labour Organisation for which this Convention
is in force undertakes to take all necessary and appropriate measures to
ensure that workers and employers may exercise freely the right to organise.
INDUSTRIAL RELATIONS REFORM ACT 1993 No. 98 of 1993 - SECT 16
SCHEDULE 16
PREAMBLE, AND ARTICLES 1 TO 6, OF THE CONVENTION CONCERNING THE
APPLICATION
OF THE PRINCIPLES OF THE RIGHT TO ORGANISE AND TO BARGAIN COLLECTIVELY
The General Conference of the International Labour Organisation, Having been
convened at Geneva by the Governing Body of the International Labour Office
and having met in its Thirty-second Session on 8 June 1949, and Having decided
upon the adoption of certain proposals concerning the application of the
principles of the right to organise and to bargain collectively, which is the
fourth item on the agenda of the session, and Having determined that these
proposals shall take the form of an international Convention, adopts this
first day of July of the year one thousand nine hundred and forty-nine the
following Convention, which may be cited as the Right to Organise and
Collective Bargaining Convention, 1949:
Article 1
1. Workers shall enjoy adequate protection against acts of anti-union
discrimination in respect of their employment.
2. Such protection shall apply more particularly in respect of acts calculated
to-
(a) make the employment of a worker subject to the condition that he shall
not join a union or shall relinquish trade union membership;
(b) cause the dismissal of or otherwise prejudice a worker by reason of
union membership or because of participation in union activities
outside working hours or, with the consent of the employer, within
working hours.
Article 2
1. Workers' and employers' organisations shall enjoy adequate protection
against any acts of interference by each other or each other's agents or
members in their establishment, functioning or administration.
2. In particular, acts which are designed to promote the establishment of
workers' organisations under the domination of employers or employers'
organisations, or to support workers' organisations by financial or other
means, with the object of placing such organisations under the control of
employers or employers' organisations, shall be deemed to constitute acts of
interference within the meaning of this Article.
Article 3
Machinery appropriate to national conditions shall be established, where
necessary, for the purpose of ensuring respect for the right to organise as
defined in the preceding Articles.
Article 4
Measures appropriate to national conditions shall be taken, where necessary,
to encourage and promote the full development and utilisation of machinery for
voluntary negotiation between employers or employers' organisations and
workers' organisations, with a view to the regulation of terms and conditions
of employment by means of collective agreements.
Article 5
1. The extent to which the guarantees provided for in this Convention shall
apply to the armed forces and the police shall be determined by national laws
or regulations.
2. In accordance with the principle set forth in paragraph 8 of article 19 of
the Constitution of the International Labour Organisation the ratification of
this Convention by any Member shall not be deemed to affect any existing law,
award, custom or agreement in virtue of which members of the armed forces or
the police enjoy any right guaranteed by this Convention.
Article 6
This Convention does not deal with the position of public servants engaged in
the administration of the State, nor shall it be construed as prejudicing
their rights or status in any way.
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