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III. THE RIGHTS OF WOMEN AGRICULTURAL WORKERS


3.1. Introduction

In many regions of the world, women make up a considerable portion of the agricultural labour force, as men often migrate from rural areas and/or are employed in non-agricultural occupations (a phenomenon referred to as “feminization of agriculture”). This chapter examines the rights of women agricultural workers, in relation to both access to employment and treatment during employment.

Agricultural labour rights are mainly determined by labour law, and particularly by two broad groups of norms: those concerning all workers, both male and female (minimum wage; safety and hygiene; trade union rights; etc.), and those specifically concerning women (non-discrimination; maternity leave; “protective” legislation; etc.). The focus here is on the latter. While some labour-law issues are relatively uncontroversial (e.g. non-discrimination), others are debated. For instance, “protective” legislation prohibiting women from working in certain occupations or at night, enacted to protect women workers, limits women’s freedom to choose their occupation and may hinder their access to employment. On the other hand, where the bargaining power between employer and employee is particularly unbalanced, allowing women to choose may leave them unprotected (e.g. on night work). In reviewing labour legislation, as it applies to agricultural workers, it must be remembered that in many countries (especially developing countries) these rules are not applied to a large sector of the economy, the informal sector[34].

Beyond labour law, other norms are also relevant. For instance, in some countries family law allows the husband to interfere in his wife’s occupation, e.g. by requiring his consent for her signing employment contracts and by allowing him to terminate her contract if he deems it necessary for the fulfilment of her family obligations.

The case law on women’s labour rights rarely refers directly to agricultural workers. It more commonly relates to urban occupations (secretaries, civil servants, etc.), especially in developing countries, where access to courts for rural women is usually very limited. However, the principles affirmed in the cases quoted in this chapter (e.g. non-discrimination in the workplace) apply also to agricultural workers.

Discrimination may be difficult to detect where it is indirect or where women’s employment opportunity and treatment are affected by entrenched socio-cultural attitudes and unequal access to education and training rather than by formal legislation. A hidden form of discrimination is maternity benefit payment by the employer, rather than by social security institutions; this raises the cost of women’s labour (due both to the time lost during maternity leave and to maternity benefit payment), fostering discrimination in women’s access to employment, particularly where fertility rates are high (as in most developing countries). As for socio-cultural practices, in many areas women’s participation in formal employment is hindered by their primary responsibility for domestic work and child care. Where women are employed, their workload is very heavy, as they perform their domestic responsibilities in addition to formal employment.

In examining the labour rights of women agricultural workers in each of the covered countries, the following outline will generally be followed: applicability of labour legislation to the agricultural sector; norms concerning access to employment (both under labour law and under family law); norms concerning treatment (remuneration and other terms and conditions of employment); maternity protection; norms on social security; and sanctions. Where available, information on the actual implementation of the norms referred to is also included.

3.2. Relevant international law

The right to work without discrimination is recognized in the UDHR (arts. 2 and 23), in the ICESCR (arts. 2(2) and 6-8) and in the CEDAW (art. 11). It includes the right to freely choose an occupation, to enjoy a just and favourable remuneration, to work in safe and healthy conditions, and to form and join trade unions. Women have a right to employment opportunities and treatment equal to men, including equal remuneration for work of equal value (UDHR, art. 23(2), ICESCR, art. 7(a) (i) and CEDAW, art. 11). Women also have the right to enjoy special protection during pregnancy and paid maternity leave, and the right not to be dismissed on grounds of pregnancy or maternity leave (CEDAW, art. 11(2)).

As for women’s labour rights under the CEDAW, it is worth recalling that the principle of non-discrimination enshrined in this treaty is not limited to state action, and that article 2(e) explicitly envisages the elimination of discrimination against women “by any person, organization or enterprise”.

Every woman, as well as every man, has a right to social security in cases of retirement, unemployment, sickness, invalidity and old age (UDHR, art. 22, ICESCR, art. 9 and CEDAW, arts. 11(1)(e) and 14(2)(c)).

Detailed provisions on women’s labour rights are contained in several ILO conventions. The Discrimination (Employment and Occupation) Convention 111 of 1958 prohibits sex discrimination in both opportunity and treatment, and provides for affirmative action. The Equal Remuneration Convention 100 of 1951 states the principle of equal remuneration for men and women for equal work or work of equal value. Reference to “work of equal value”, besides “equal work”, is important for the practical application of the principle. Indeed, since in many countries women rarely hold the same position as men due to cultural stereotypes and unequal access to education, reference to the economic value of the work allows comparisons across occupational categories and industries. The Termination of Employment Convention 158 of 1982 prohibits dismissal on grounds of sex, marital status and absence during maternity leave.

Under the Night Work (Women) (Revised) Convention 89 of 1948 and its 1990 Protocol, women’s work at night (defined as a period of at least 11 consecutive hours, including at least seven hours between 10pm and 7am) is prohibited for some industrial occupations (not for agricultural work).

The Maternity Protection (Revised) Convention 103 of 1952 entitles pregnant workers to a maternity leave of at least 12 weeks (with no less than six weeks after childbirth); allows additional leave in case of late delivery or pregnancy-related illness; prohibits dismissal while on maternity leave; entitles women to medical and cash benefits, provided through either compulsory social insurance or public funds; and allows work interruptions for nursing purposes. While this Convention applies to both industrial and non-industrial occupations, states may exempt work in agricultural undertakings other than plantations. The Workers with Family Responsibility Convention 156 of 1981 prohibits discrimination against men and women workers with family responsibilities (e.g. family responsibilities are not a valid reason for termination of employment).

The Plantations Convention 110 of 1958 and its 1982 Protocol protect the labour rights of plantation workers, without discrimination on the basis of sex. The term plantation is defined as “any agricultural undertaking regularly employing hired workers which is situated in the tropical or subtropical regions and which is mainly concerned with the cultivation or production for commercial purposes of coffee, tea, sugarcane, rubber, bananas, cocoa, coconuts, groundnuts, cotton, tobacco, fibres (sisal, jute and hemp), citrus, palm oil, cinchona or pineapple; it does not include family or small-scale holdings producing for local consumption and not regularly employing hired workers” (article 1(1) of the Convention, as amended by the Protocol). State parties may exclude or add categories of agricultural undertakings from the application of the Convention. The Convention contains guarantees as to the recruitment (e.g. the recruitment of the household head does not involve the recruitment of household members), employment contracts, wages (e.g. wages are to be paid directly to the worker), annual paid leave and weekly rest, compensation for injury, trade unions (e.g. workers’ freedom of association “without distinction whatsoever”), and maternity protection (maternity leave of at least 12 weeks, at least six of which after childbirth, with additional leave for late delivery or pregnancy-related illness; cash and medical benefits; protection from dismissal during maternity leave; breaks for nursing purposes; prohibition for a pregnant woman to “undertake any type of work harmful to her in the period prior to her maternity leave”).

The Migration for Employment (Revised) Convention 97 of 1949 provides guarantees for lawfully migrant workers, without discrimination on the basis of sex.

The principle of non-discrimination is also stated in the 1998 ILO Declaration on the Fundamental Principles and Rights at Work. This declaration reaffirms some fundamental principles and rights to which all ILO member states must adhere by the very fact of their ILO membership, regardless of their ratification of the relevant conventions.

Table 5. Ratification of some international labour conventions


C 89

C 97

C 100

C 103

C 110

C 111

C 156

C 158

Brazil

1957

1965

1957

1965

1965, denounced 1970

1965

No

1995,denounced 1996

Burkina Faso

No

1961

1969

No

No

1962

No

No

Fiji

No

No

No

No

No

No

No

No

India

1950

No

1958

No

No

1960

No

No

Italy

No

1952

1956

1971

No

1963

No

No

Kenya

1965

1965

2001

No

No

2001

No

No

Mexico

No

No

1952

No

1960

1961

No

No

Philippines

1953

No

1953

No

1968

1960

No

No

South Africa

1950

No

2000

No

No

1997

No

No

Tunisia

1957

No

1968

No

No

1959

No

No

C 89: ILO Night Work (Revised) Convention, No. 89 of 1948 (total 65 ratifications).

C 97: ILO Migration for Employment (Revised) Convention, No. 97 of 1949 (total 42 ratifications).

C 100: ILO Equal Remuneration Convention, No. 100 of 1951 (total 156 ratifications).

C 103: ILO Maternity Protection (Revised) Convention, No. 103 of 1952 (total 40 ratifications).

C 110: ILO Plantations Convention, No. 110 of 1958 (total 12 ratifications).

C 111: ILO Discrimination (Employment and Occupation) Convention, No. 111 of 1958 (total 154 ratifications).

C 156: ILO Convention on Workers with Family Responsibilities, No. 156 of 1981 (total 33 ratifications).

C 158: ILO Termination of Employment Convention, No. 158 of 1982 (total 32 ratifications).

Source: ILO web site (www.ilo.org).

3.3. The Americas

3.3.1. Regional overview

In the region, the human right to work and to just, equitable, and satisfactory conditions of work, without discrimination on the basis of sex, is stated in the Additional Protocol to the ACHR (arts. 3, 6 and 7). As for Canada, United States and Mexico, the North American Free Trade Agreement (NAFTA) includes a North American Agreement on Labor Cooperation, which states the principles of non-discrimination on the basis of sex and of equal pay for equal work (principles 7 and 8 of Annex 1 to the Agreement on Labor Cooperation).

In most Latin American countries, women may freely enter in employment contracts and dispose of their wage. However, in practice rural women often ask for their husband’s authorization before undertaking a job, and quit it if their husband so requires (FAO, 1994). Moreover, some laws explicitly allow the husband to interfere with the employment of his wife, although there is a trend throughout the region to repeal these norms (for an example from Guatemala, see below, Box 3).

Most countries have constitutional norms and/or ordinary legislation prohibiting sex/gender discrimination on the workplace, either in general or with specific regard to agricultural labour. The equal remuneration principle has been adopted within most national legal systems. However, reference is usually made to equal pay for “equal work” (or similar formulas), instead of the internationally recognized standard of “work of equal value”. Overall, a considerable gender pay gap remains throughout the region; for instance, in Paraguay, men earn 31 percent more than women for each hour worked (CEACR (100), 2000).

Maternity leave ranges from 60 days (Bolivia) to 14 weeks (Panama), with a considerable number of countries granting 12 weeks (Belize, Colombia, Haiti, Jamaica, Uruguay). In Venezuela, maternity leave is 18 weeks (Comprehensive Labour Act of 1997). Cash benefits range from 60 percent of the wage (Dominica, Nicaragua) to 100 percent (Chile, Colombia, Venezuela); in the United States, maternity leave is unpaid. In most countries cash benefits are funded by social security institutions (Chile, Paraguay, Venezuela), although in some cases they are paid by the employer (Jamaica) or jointly by social security and the employer (Costa Rica) (United Nations, 2000, updated to 1998). However, there have also been reports of lack of benefit payment in plantations; for instance, in Guatemala, maternity benefits for women plantation workers are paid only in some regions (CEACR (110), 1997).

In plantations, there is a widespread practice of recruiting women as temporary workers, without contract and on piece-work. This non-formalized situation entails the non-application of the protection accorded by labour law, and therefore sex/gender discriminatory practices (FAO, 1994 and 1996).

3.3.2. Mexico

Article 123 of the Mexican Constitution recognizes the right to work of “every person”. The Federal Labour Code of 1970 (applicable to agricultural labour; art. 1 of the Code and art. 123 of the Constitution) prohibits sex discrimination (art. 3).

As for access to employment, both women and men over 16 years (and those between 14 and 16 years if they have the authorization of their parents) can freely enter into labour contracts (Federal Labour Code, art. 23). Women have thus full legal capacity to work. Employers cannot refuse job applications on grounds of sex (Federal Labour Code, art. 133(I)). Provisions banning women from certain types of work were repealed in 1974.

Discriminatory provisions on women’s employment opportunities are contained in the civil codes of some states. The Civil Code of Oaxaca states that the wife can hold an occupation only if this does not prejudice her primary responsibility as housewife (arts. 167 and 168). The husband may oppose the employment of his wife, provided that he earns sufficiently for the needs of the family; where the wife resists the opposition of the husband, the dispute is to be decided by courts (arts. 169 and 170).

In other states, similar provisions are expressed in gender neutral terms, with each spouse having the right to oppose the employment of the other (e.g. Civil Code of Aguascalientes; art. 165, the Civil Code of Guanajato as amended in 2000;, art. 168, the Civil Code of Sonora, art. 261).

As for treatment, men and women workers have equal rights and obligations (Labour Code, art. 164). Labour conditions cannot be inferior to the minimum legal requirements, without discrimination on the basis of sex (art. 56). The principle of equal remuneration for equal work (though not for work of equal value) is stated in Article 123(VII) of the Constitution and article 86 of the Labour Code.

However, sex/gender discrimination is in practice widespread. A considerable number of rural woman are employed as temporary workers, without contract and on a piece-work basis, and are thus not protected by labour law (FAO, 1994)[35]. Wage differentials vary considerably from sector to sector; in agriculture and fishing, women’s average hourly earnings are 92 percent of men’s (CEACR (100), 1998).

Pregnant women cannot be required to undertake heavy and dangerous work (Labour Code, art. 166). With particular regard to agriculture, the Federal Safety, Hygiene and Working Environment Regulations of 1997 contain specific provisions protecting the health of pregnant women. Under article 154, pregnant women cannot be required to work in the operation, transport or storage of teratogenic or mutagenic substances, while under article 155 they cannot use chemical substances (e.g. fertilisers, etc.).

Pregnant workers have a right to maternity leave of at least six weeks before and six weeks after childbirth (with possible extensions); to the payment of the full wage; and to retain their employment (Constitution, art. 123(V) and Labour Code, art. 170). Under the Social Security Act of 1995, maternity benefits equivalent to 100 percent of the worker’s salary are paid for 48 days before and 48 days after childbirth by the Mexican Institute of Social Security under a mandatory scheme, provided that the pregnant worker meets specified requirements; if and to the extent to which this norm is applicable, the employer does not have to pay the full salary (arts. 101-103). The Act also provides for a child day-care system (arts. 201-207).

3.3.3. Brazil

Labour law in Brazil was for long differentiated for agricultural and non-agricultural workers. The Labour Law Consolidation of 1943 did not apply to agricultural workers. The labour rights of agricultural workers were first protected only with the adoption of the Rural Workers Statute of 1963 and the creation of a specific social security institute (FUNRURAL). However, agricultural workers continued to enjoy lesser rights than their non-agricultural counterparts. In 1973, the 1963 Statute was repealed by Law 5889, which governs agricultural labour and states the applicability of the Labour Law Consolidation insofar as not inconsistent with it (Law 5889, art. 1). The dualistic labour protection was definitively repealed by the 1988 Constitution, which granted to both urban and rural workers labour rights such as protection against unfair dismissal, minimum wage, maximum working hours, weekly rest and annual paid leave, social security for unemployment and work-related injuries, safe and healthy working conditions, and collective bargaining and trade union rights (arts. 7 and 8).

As for women’s access to employment, article 7(XXX) of the Constitution and article 373A of the Labour Law Consolidation (inserted by Law 9799 of 1999) prohibit discrimination on the basis of sex, pregnancy and marital status in recruitment, and envisage special measures to promote women’s employment.

Marital authority provisions limiting women’s access to employment have been repealed. The norms of the 1916 Civil Code requiring the authorization of the husband for women’s employment (arts. 233(IV) and 242(VII)) were repealed by Law 4121 (1962). Article 446 of the Labour Law Consolidation, entitling the husband to rescind the employment contract of the wife if he deemed it necessary for household needs, was not applied after the 1962 Law and was formally repealed by Law 7855 (1989). However, marital authority remains in practice widely applied in rural areas (FAO, 1994).

A common discriminatory practice concerning women’s access to employment is the requirement by employers of sterilisation certificates as a condition for recruitment (CEACR (111), 1993). Law 9029 of 1995 and article 373A(IV) of the Labour Law Consolidation (inserted by Law 9799 of 1999) prohibit employers from requiring sterilisation or pregnancy certifications or examinations as a condition for employment, and bar employers from conducting intimate examinations of employees. The phenomenon seems to have subsided since the mid-nineties.

As for treatment, article 7(XXX) of the Constitution and article 373A of the Labour Law Consolidation (inserted by Act 9799 of 1999) prohibit discrimination on the basis of sex, pregnancy and marital status in training, promotion and dismissal (except in case of incompatibility with the nature of the employment), as well as in remuneration. Work of the same function, productivity and technical sophistication must be paid with equal remuneration (Labour Law Consolidation, arts. 5 and 461). Training provided to employees by the government, employers and others must be available without sex discrimination (Labour Law Consolidation, art. 390B, inserted by Law 9799 of 1999).

However, in practice, a substantial gender pay gap exists (CEACR (111), 1994). Barsted (2002) reports that the average rural sector wage is R$ 257.97 for men and R$ 144.40 for women. Moreover, working conditions and wages differ considerably among women belonging to different racial groups; within each group, there is a considerable gender pay gap. Women make up most of the informal sector, and are therefore often not protected by formal legislation (Justiça Global, 2000). In this context of discrimination, there is an overall lack of complaints by rural women. In most cases, the victims of discrimination refuse to be identified for fear of reprisals and for lack of trust in public authorities (CEACR (111), 1994).

Pregnant workers have a right to a maternity leave of 120 days, without prejudice to employment and salary (art. 7(XVIII) of the Constitution). In 1996, the High Labour Court declared that maternity leave is a fundamental right which cannot be negotiated or alienated (CEACR (103), 1999). Pregnant workers cannot be dismissed from the date of the communication of the pregnancy to the employer to five months after childbirth; in case of dismissal, pregnant women have the right to be reinstated in their position (art. 10(II)(b) of the transitory constitutional provisions and Labour Law Consolidation, art. 392).

As for maternity benefits, rural occupations have been equated to urban occupations by the 1988 Constitution. This required implementing legislation, which was adopted only in 1994, after mobilizations of women workers (Guivant, 2001). Workers on maternity leave are now entitled to a benefit equivalent to the minimum wage, paid by the social security institution, provided that they prove to have worked for 12 (not necessarily continuous) months[36] (Law 8213 (1991), art. 39, as amended by Law 8861 (1994)). Decree 4883 (1998) provided that maternity benefits were to be paid through social insurance only up to a limit, beyond which they were to be paid by employers; however, the Federal Supreme Court held this limit unconstitutional, stating that it was for the state to entirely pay maternity benefits (CRLP, 2000).

Pregnant workers carrying out work prejudicial to health may obtain transfer to another work (Labour Law Consolidation, art. 392, as amended in 1999). Nursing women have the right to two half-an-hour nursing breaks per day for children up to the age of six months. Article 7(XXV) of the Constitution grants rural workers the right to free day-care for children from birth to six years. Article 389(1) of the Labour Law Consolidation requires employers employing 30 or more women over 16 years to provide a crèche for children. However, Legislative Decree 229 (1967) allows employers to provide crèche reimbursements instead. Agricultural undertakings employing more than 50 families of workers must provide free primary schools for the children of the farm workers (Law 5889 (1973), art. 16).

While social benefits (maternity leave, retirement pension, etc.) apply to all rural workers, their actual enjoyment is conditional upon presentation of documentation (identity card, fiscal registration number - CPF, work card, etc.)[37]. Due to monetary and transaction costs, few rural women have these documents. In Rio Grande do Sul, for instance, 30 percent of the women rural workers did not even have the identity card (Guivant, 2001).

As for sanctions, Law 9459 of 1997 amends previous legislation, providing for tougher criminal sanctions for violations of the non-discrimination principle. However, as of 1999 no cases had been brought under this law (CEACR (111), 1999).

Relevant provisions have also been adopted at state and municipal level. For instance, the municipality of São Paulo adopted Law 11081 (1991) and Decree 30497 (1991), empowering the municipality to impose sanctions on employers requiring pregnancy tests, gynaecological examinations or sterilisation certificates to obtain or maintain jobs.

Box 3. Women’s access to employment in Guatemala: the Morales de Sierra case

In Guatemala, the Civil Code allowed married women to undertake an occupation only insofar as consistent with their role as housewives (art. 113), and allowed the husband to oppose the employment of his wife, provided that he had sufficient earnings to provide for the maintenance of the household and he had justified reasons (art. 114).

A constitutionality challenge of these discriminatory norms was rejected by the Constitutional Court on the basis inter alia of the need to ensure legal certainty and to protect the children (Case 84-92 of 1992). Another constitutionality challenge was brought before the Constitutional Court by the Attorney-General of Guatemala in 1996.

In 1995, a woman filed a complaint with the Inter-American Commission on Human Rights, challenging articles 113 and 114 as well as other provision of the Civil Code concerning the administration of family property.

In 1998, deciding on a preliminary controversy concerning locus standi (the woman had not suffered from the application of the challenged norms herself) and exhaustion of domestic remedies, the Commission admitted the complaint (Maria Eugenia Morales de Sierrav. Guatemala, Inter-American Commission on Human Rights, Case 11625, Report No. 28/98, 6 March 1998).

While the proceeding was pending, most of the challenged norms (including articles 113 and 114) were repealed by Decrees 80 (1998) and 27 (1999), reforming the Civil Code. In addition, Decree 7 of 1999 (Ley de Dignificación y Promoción Integral de la Mujer) was adopted, guaranteeing women’s right to freely choose their employment and prohibiting discrimination on the basis of marital status (art. 12).

In 2001, the Inter-American Commission issued a report on the merits. The Commission clarified that differences in treatment do not necessarily amount to discrimination, where they are based on “reasonable and objective criteria”. The Commission held however that the challenged provisions could not be justified, and violated articles 11, 17(4) 24 of the ACHR. The Commission recognized the important progress made with the 1998 and 1999 reforms, and called the state to fully comply with its international human rights obligations (Maria Eugenia Morales de Sierrav. Guatemala, Inter-American Commission on Human Rights, Case 11625, Report No. 4/01, 19 January 2001).

3.4. Sub-Saharan Africa

3.4.1. Regional overview

The ACHPR recognises the right of “every individual” to work under equitable and satisfactory conditions and to receive equal pay for equal work (art. 15). On the other hand, the Charter is silent on some other aspects concerning labour rights, particularly with regard to trade union rights. Non-discrimination in training and equal opportunities to work (including women’s freedom to choose their occupation, equality in access to employment, and equal remuneration for jobs of equal value) are affirmed in the Draft Protocol on the Rights of Women in Africa (not yet adopted; arts. 12 and 13).

In several countries sex discrimination in employment is prohibited by constitutional norms (e.g. art. 17(3)(e) of the 1999 Constitution of Nigeria, stating the equal pay principle among the Fundamental Objectives and Directive Principles of State Policy) and/or by ordinary legislation (e.g. Labour Code of Ivory Coast 1995, art. 4, prohibiting sex discrimination in recruitment, promotion, remuneration, vocational training, labour division, social benefits and termination of the labour contract; art. 14(1)(b) of the Ethiopian Labour Proclamation of 1993, prohibiting sex discrimination in remuneration). However, labour legislation often excludes the agricultural sector from its scope of application. For instance, Nigeria’s National Minimum Wage Act of 1981, as amended, excludes workers in farms employing fewer than 50 persons, part-time workers, workers paid on piece-rate and seasonal agricultural workers (CEACR (100), 2000).

Maternity leave ranges from 60 days (Mozambique, Guinea Bissau, Eritrea) to 14 weeks (Cameroon, Central African Republic, Chad, Gabon, Madagascar, Togo). Cash benefits range from 25 percent of the wage (Botswana) to 100 percent (Congo, Mauritania, Mauritius, Zambia), with a substantial number of countries granting 50 percent of the wage (Chad, Burundi, Ghana, Nigeria). No benefit is paid in some countries (Lesotho). In some countries cash benefits are funded by social security institutions (Namibia, Senegal), in others they are paid by the employer (Ethiopia, Ghana, Nigeria) (United Nations, 2000, updated to 1998). The requirements to qualify for these benefits may be very demanding; for instance, the Zambian Employment Act of 1965 requires at least two years of continuous service with the employer (secs. 15A and B, inserted by Law 18 of 1982[38]). In some countries, legislation prohibits dismissal during pregnancy (e.g. the Labour Code of Ivory Coast; art. 23(3), and the 1975 Labour Act of Nigeria, sec.53(4)).

However, laws protecting women’s labour rights are often not implemented. Rural women are often unaware of their legal rights. In addition, women make up a considerable portion of the agricultural labour force employed in the informal sector (which accounts for substantial GDP shares throughout sub-Saharan Africa; see e.g. MacGaffey, 1991), where labour legislation is not applied.

Field studies from plantations (e.g. Mbilinyi, 1995, on a sugar cane plantation in Tanzania; Bob, 1996, on a coffee plantation in South Africa) found evidence of widespread discrimination in access to employment (with women concentrated in low-pay and subordinate manual jobs in the fields and men in higher positions, particularly as supervisors and headmen), wage differentials (with higher wages for typically men’s positions, e.g. sugar cane cutters, than for women’s positions, e.g. weeders), sexual harassment (most often by headmen), discrimination in access to training and vocational courses, discrimination in benefits allocation (e.g. where housing is provided, unmarried workers are given housing units suitable for men without dependants but extremely small for female-headed households) and discrimination within trade unions (as for participation, leadership positions, etc.). Discriminatory provisions may also be contained in collective agreements concerning plantation workers.

Customary law also affects the labour rights of women agricultural workers. Generally speaking, there is a gender division of labour, whereby men mainly cultivate cash crops, while women cultivate food crops or locally traded crops. However, under many customary legal systems, women must provide their labour for certain tasks in their husbands’ fields (e.g. weeding). This work, provided within the household, is unpaid and unprotected (Lastarria-Cornhiel, 1997).

3.4.2. Kenya

Agricultural labour is covered by the Employment Act of 1976 (Cap. 226). This Act fails to address gender issues. No reference is made to the principle of non-discrimination. No provision exists on sexual harassment. Women’s night work is prohibited in industrial undertakings (with exceptions; secs. 28 and 29); the Ministry of Labour may prohibit or subject to conditions women’s work in “any specified trade or occupation” (sec. 56(1)(j)).

Minimum wage legislation (Regulation of Wages and Conditions of Employment Act, Cap 229) provides for the establishment of sector-specific wages councils by the Ministry for Labour, with the task of recommending wage determination or regulation for specific trades or occupations. Wages councils have been established for several sectors (e.g. textiles, domestic servants, tourism, etc.), including agriculture. Neither the Act nor the Regulation of Wages (Agricultural Industry Wages Council Establishment) Order, as amended, which establishes the wages council for agriculture, explicitly refer to the equal pay principle.

The Regulation of Wages (Agricultural Industry Wages Council Establishment) Order also determines maximum working hours. For male workers, the limit is 42 hours over six days per week (72 hours over seven days for some occupations, e.g. herdsmen); for female workers, the limit is 36 hours over six days per week (sec. 5).

The number of women employed in the formal sector has increased, mainly because of women’s improved access to education. However, a gender division of labour (with higher positions being usually reserved to men) remains, due to cultural attitudes rather than to formal legislation. Moreover, women are mostly concentrated in the informal sector. Although women’s wages relative to men’s have increased in the last decades, a considerable gender pay gap nevertheless remains[39]. In rural areas, women are largely unaware of their legal rights (Gopal and Salim, 1998).

Maternity protection was originally established with a 1975 Presidential Directive, envisaging a two-month paid maternity leave. The Employment Act of 1976 provides for a two-month fully-paid maternity leave at the expense of the employer (sec. 7(2)). The leave period is considerably shorter than that envisaged by international labour conventions. Moreover, women taking the maternity leave lose their one-month annual leave for the relevant year (sec. 7(2))[40]. Furthermore, obliging employers to pay for maternity benefits raises the cost of women’s labour and therefore discriminates against them (House-Midamba, 1993). The Act does not explicitly prohibit the dismissal of pregnant women.

Under the pension law, widows (though not widowers) lose their work pension upon remarriage (CRLP, 1997).

3.4.3. Burkina Faso

The Constitution of Burkina Faso states that everybody has an equal right to work, and prohibits sex discrimination in employment and remuneration (art. 19).

The Labour Code, as revised in 1992 (Act 11 of 1992[41]), applies to all employment contracts (art. 1(1) and (2)). The Code states the principle of non-discrimination on the basis of sex (sec. 1(3)). However, it does not envisage sanctions for violations of this principle.

The minimum age for work is 14 years, without distinction between men and women (art. 87). Article 104 of the Labour Code states the principle of equal pay for equal working conditions, professional qualifications and output. No reference is made to work of equal value.

Maternity leave is of 14 weeks (six of which before and eight after childbirth), with maternity benefits equivalent to 100 percent of the wage paid jointly by social security institutions and employers (art. 84). Nursing mothers have two daily breaks for up to 15 months (art. 85).

Article 82 of the Labour Code prohibits assigning workers to tasks that may endanger their reproductive capacity or, in the case of pregnant workers, the health of the workers or of their child.

Notwithstanding this legislation, women’s participation in formal employment is very low compared to men’s (just over 12 percent over the period 1986-1992), without major trends towards improvement (CEACR (111), 1995). Sex/gender discrimination in recruitment, allocation of responsibilities, and remuneration has been reported (CEDAW, 2000).

Customary law contains labour obligations for women. In Comoé Province, young wives have the duty to provide labour for their husbands’ fields, in addition to cultivating their own fields. The extent of this duty varies across ethnic groups, with particularly extensive labour obligations among the Turka and the Gouin. Women are liberated from these obligations usually in their mid-forties, when their children are old enough to provide labour (van Koppen, 1998).

3.4.4. South Africa

Until recently, women farm workers had little protection under South African legislation. The Basic Conditions of Employment Act of 1983 was extended to agricultural workers in 1993. The Labour Relations Act of 1995, the Basic Conditions of Employment Act of 1997 and the Employment Equity Act of 1998 have substantially improved the position of women farm workers.

For a long period, the legal capacity of married women to sign employment contracts was restricted by family law. Under the Black Administration Act of 1927, women married within a customary marriage could not sign contracts without the assistance of their husband (sec. 11(3)). This norm was repealed by the Recognition of Customary Marriages Act of 1998, granting wives full legal capacity to sign contracts (sec. 6).

The Employment Equity Act of 1998 prohibits direct and indirect unfair discrimination on grounds of gender, sex, pregnancy, marital status, and family responsibility in both access (recruitment) and treatment (job classification, remuneration, employment benefits, employment terms and conditions, promotion and dismissal) (secs. 6 and 1). Where discrimination is alleged, the burden of proof on its fairness is placed on the employer (sec. 11). The principle of non-discrimination on grounds of sex and pregnancy has also been affirmed in the case law, particularly in McInnes v. Technikon Natal (Labour Court, D322/98, March 2000) and Woolworths (Pty) Ltd. v. Whitehead (Labour Appeal Court, CA06/99, 3 April 2000)[42].

Besides prohibiting discrimination, the Employment Equity Act also provides for affirmative action with regard to “designated employers” (i.e. those employing 50 or more workers, or less than 50 but with a determined annual turnover) (sec. 1 and Chap. III). Other employers may voluntarily comply with the affirmative action rules (sec. 14). Affirmative action measures must be taken by designated employers in consultation, and possibly agreement, with employees (sec. 16). Employers are obliged to develop “employment equity plans” must state objectives, numerical targets, strategies, measures, timetable and monitoring and evaluating procedures (sec. 20). Affirmative action measures may include preferential treatment and numerical goals (but not quotas) (sec. 15).

Moreover, “designated employers” are subject to special rules on the application of the equal remuneration principle. In particular, they are to report remuneration and benefits to the Employment Conditions Commission; where income differentials are disproportionate, they must adopt measures, including collective bargaining, application of the standards set by the Employment Conditions Commission, and promotion of training (sec. 27).

Farm workers employed for more than four weeks have the right to a four-week contract termination notice (the same as workers employed for more than one year in non-agricultural sectors) (sec. 39(1)(c) of the Basic Conditions of Employment Act).

In practice, the employment of women farm workers is often tied to their husband’s employment. Indeed, there are reports that married women farm workers are denied contracts in their own names, and work on the basis of contracts signed by their husbands (Human Rights Watch, 2001).

A field study from the Waterval Coffee Plantation in Lebowa found no formal discrimination and yet substantial gender differences as to the nature of the job and the remuneration, with women concentrated in low-pay, seasonal/temporary jobs. Women constituted 22 percent of the permanent workers (2 out of 9), 66 percent of the semi-permanent workers (36 out of 54), and 92 percent of the seasonal and temporary workers (275 out of 300). This gender stratification of labour had an effect on the wage structure. Permanent workers (mainly men) were paid R18.00 per day, while seasonal and temporary workers were paid on piece-rate at R2.80 per crate (with an average of two crates per day). Tenure security was also unequally distributed, as positions dominated by men (permanent jobs) were more secure than those mainly occupied by women (seasonal and temporary workers); temporary and seasonal workers had no security of being hired the following year. Moreover, women bore a very heavy workload, cumulating work in the plantation with domestic responsibilities (Bob, 1996).

Housing benefits granted to plantation workers are usually given to (male) permanent employees, while single women (usually temporary) workers tend to be excluded (Human Rights Watch, 2001). In this regard, case law has been developed under the Extension of Security of Tenure Act (ESTA), which protects from eviction persons occupying land with the consent of the landowner on the date of the Act (including farm workers). In Landbou Navorsingsraad v. Klaasen (LCC 83R/01, 29 October 2001), the Land Claims Court held that the wife of an “occupier” protected under the Act (a farm worker) is not entitled to an eviction notice under section 9(2)(d) of ESTA unless the landowner explicitly consented to her residence on the land.

In Conradie v. Hanekom and Another (1999 (4) SA 491 LCC), the Land Claims Court set aside an eviction order against two farm workers, husband and wife, employed on the same farm. Having dismissed the husband, the landowner had sought to evict both. The court held that the wife, as employee, had a right not to be evicted under ESTA, and her eviction order was set aside. Moreover, she had a right to family life under section 6(2)(d) of ESTA; therefore, her husband (who after his dismissal was no longer a protected “occupier”) had a right to reside in the land as a family member of an “occupier”.

Another interesting case, concerning inter alia the protection from eviction for family members of farm workers, is Lombaard NO v. Motsumi and Others (LCC 52R/01, 17 May 2001). In this case, the applicant sought to evict farm occupiers and their household members after termination of their employment contracts. While the magistrate court granted an eviction order, the Land Claims Court set it aside on the ground that while employment was terminated, many employees and household members were occupiers under ESTA on other grounds (e.g. many of the household members were born and had lived in the farm for all their life).

As for maternity protection, the Basic Conditions of Employment Act of 1997 provides that a female employee is entitled to at least four months maternity leave, of which six weeks must be taken following childbirth. Pregnant or nursing women cannot be required to perform work hazardous to her health or to the health of the child; male and female employees have a annual three-day family responsibility paid leave for childbirth or child illness (secs. 25-27).

Maternity benefits are paid by the Unemployment Insurance Fund under the Unemployment Insurance Act. Under this Act, maternity benefits are 45 percent of a worker’s normal weekly earnings for a period not exceeding 26 weeks, provided that the worker has been employed for at least 13 weeks during the 52 weeks before childbirth (secs. 34 and 37). However, this Act does not apply to seasonal farm workers, i.e. workers employed for less than a continuous period of 4 months. Moreover, the Fund manages unemployment, illness and maternity benefits, and there is an overall limit on the benefits that a worker can receive (one week’s benefits for each six weeks’ employment); therefore, women on maternity leave use up their rights to unemployment benefits. At the time of writing, amendments to reform this system have been proposed.

The Labour Relations Act of 1995 prohibits unfair dismissal, which includes both the failure of an employer to allow the return of a woman worker after maternity leave on the one hand, and the renewal of a temporary employment contract on less favourable terms after maternity on the other; dismissal for pregnancy (as well as intended pregnancy and any reason relating to pregnancy) or on directly or indirectly discriminatory grounds is automatically unfair (secs. 186 and 187).

The Promotion of Equality and Prevention of Unfair Discrimination Act of 2000 applies where the Employment Equity Act does not apply (sec. 5(3)). It prohibits unfair discrimination against women by the state and any persons, for instance in women’s access to social security (secs. 6 and 8(g)).

As for social security laws, old age pension constitutes a major source of income for the rural poor. Although women constitute the majority of the eligible population (because of women’s lower retirement age - 60 instead of 65 - and because of their longer life expectancy), fewer women than men benefit from the pension programme. One of the explanations for this is that many rural women may lack identity cards, which are required for pension eligibility (Baden et al., 1999).

3.5. Northern Africa and the Middle East

3.5.1. Regional overview

The Arab Charter on Human Rights (not yet in force) recognises without discrimination between men and women (art. 2) the right to work (art. 30), to freely choose an occupation (art. 31), and to enjoy equal work opportunities and equal remuneration for equal work (art. 32).

Throughout the region, women’s participation in formal employment is low, due to both legal and cultural factors (e.g. on Jordan, see CEDAW, 2000:184). A common example of a legal obstacle is marital authority norms conditioning women’s employment to the authorization of the husband. In Syria, wives can work outside the house only with the permission of the husband (Personal Status Law of 1975, arts. 73 and 74, quoted in Human Rights Watch, 2001c). In Turkey, a similar norm (1926 Civil Code, art. 159) was set aside by the Constitutional Court (Judgement No. 30/31, 29 November 1990[43]); the Civil Code of 2001 abolishes the spousal authorization requirement, although the welfare of the family is to be taken into account in the choice and pursuit of occupations (art. 192).

As for labour legislation, although most countries have adopted laws or codes prohibiting sex discrimination in employment, discrimination remains widespread in practice, especially in rural areas. Women agricultural labourers earn roughly between half and two-thirds of men’s wages, although with considerable cross-country, regional and seasonal variation (FAO, 1995b). In Saudi Arabia, a gender segregation in the workplace is strictly enforced (Human Rights Watch, 2001b).

Maternity leave tends to be particularly short throughout the region (45 days in Bahrain; 50 days in Egypt and Libya; 60 days in Yemen; 62 days in Iraq; 70 days in Kuwait and in Syria). Some countries have 12-week maternity leaves (Israel, Morocco, Turkey), while Algeria has a 14-week period. Cash benefits range from 50 percent of the wage (Libya) to 100 percent (Bahrain, Syria). While in some countries cash benefits are funded through social security (Turkey), in most cases they are paid by the employer (Bahrain, Libya, Saudi Arabia, Syria, Yemen) or jointly by social security and the employer (Egypt) (United Nations, 2000, updated to 1998).

3.5.2. Tunisia

Agricultural labour is governed by the Labour Code of 1966, as amended (see arts. 1 and 3 of the Code). Although the terminology is masculine throughout the Code (e.g. “travailleur”), the principle of non-discrimination between men and women is explicitly stated (art. 5bis, inserted by Law 93-66 of 1993).

The Labour Code prohibits women’s night work only in non-agricultural sectors (arts. 65-74). However, government decrees may restrict women’s employment in certain agricultural occupations entailing “particular risks” (art. 375). Work supervisors must ensure respect of “public decency” (“bonnes moeurs” and “décence publique”) in farms where women are employed (Labour Code, art. 373).

Women’s participation in formal employment has increased considerably in the recent decades. However, women tend to remain concentrated in specific occupations, particularly seasonal or daily agricultural workers, and in inferior tasks (e.g. manual work) (Ferchiou, 1985).

As for remuneration, decrees setting the minimum wage for agriculture (“salaire minimum agricole garanti” - “SMAG”) explicitly state that the rate applies to workers of both sexes (e.g. Decree 1865 of 1994, quoted in CEACR (100), 1996). A gender pay gap has nonetheless been reported for the agricultural sector, mainly due to occupational segregation. Agricultural work involving machinery, which is dominated by men, is considered as specialized work, and entails higher remuneration. By contrast, women are generally paid the minimum agricultural wage (SMAG) (Belarbi et al., 1997).

A study from the Sidi Bou-Zid region found that women farm workers were not paid individually: households were remunerated collectively for the labour they provided, and the global wage was paid to the (male) household head. This system severely limits the financial autonomy of women workers and excludes them from control over cash income (Ferchiou, 1985).

Women’s participation in trade unions varies considerably across sectors, and is particularly low in the agricultural sector (where only 3.5 percent of union members are women, compared e.g. to 55 percent in the textile industry) (Belarbi et al., 1997).

Article 64 of the Labour Code, concerning maternity protection, applies to all enterprises, thus including agricultural ones, with the only exception of family enterprises. It grants pregnant workers a paid maternity leave of 30 days. Maternity leave may be extended for 15-day periods with the supply of a medical certificate. Nursing women have two half-an-hour breaks per day to breastfeed. Establishments employing more than 50 women must provide a room for breast-feeding.

As for social security, the general social security regime, originally not covering agricultural labour, was extended to agricultural workers in 1970, provided that the workers have been employed for more than six months with the same employer (Belarbi et al., 1997). Given their concentration in seasonal and temporary positions, women workers may find it difficult to meet this requirement.

3.6. Asia

3.6.1. Regional overview

The principle of non-discrimination on the basis of sex/gender is affirmed in several countries. For instance, the 1998 Labour Protection Act of Thailand mandates employers to treat male and female employees equally with regard to employment, “except where the nature or conditions of the work does or do not allow the employer to do so” (sec. 15). On the other hand, women’s access to agricultural employment is often limited by the extension of night work bans to the agricultural sector (e.g. the 1955 Employment Act of Malaysia, sec. 34(1)) and by provisions requiring the authorization of the husband for women to sign employment contracts (e.g. Civil Code of Indonesia, art. 1601(f)).

Existing studies suggest the existence of rigid gender occupational segregation. In Bangladesh, for instance, women’s employment in the agricultural sector increased substantially in recent years, but remains concentrated in seasonal occupations and remunerated with wages lower than those for men. Labour legislation is poorly enforced, and trade unions rarely protect the interests of women workers as such (Baden et al., 1994).

Maternity leave ranges from 52 days (Nepal) to 12 weeks (Bangladesh, Pakistan), but is generally short (e.g. 60 days in Malaysia; 90 days in Cambodia, China and Laos). Cash benefits range from 50 percent of the wage (Cambodia) to 100 percent (most countries: e.g. China, Indonesia, Malaysia, Nepal). In most countries maternity benefits are paid by the employer (Bangladesh, Indonesia, Nepal, Malaysia, Sri Lanka), although some exceptions exist (benefits are funded through social security in the Philippines and in Viet Nam) (United Nations, 2000, updated to 1998). Some laws specifically prohibit dismissal on grounds of pregnancy (e.g. Thai Labour Protection Act; sec. 43, Malaysian Employment Act, art. 40(3)).

3.6.2. India

Article 39 of the Indian Constitution directs the state to ensure that “citizens, men and women equally, have the right to adequate means of livelihood”; that “there is equal pay for equal work for both men and women”; and that “the health and strength of workers, men and women, [...] are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength”. On the other hand, article 16 of the Constitution, stating the principle of equality in employment, applies to public employment only.

With regard to access to employment, sex discrimination is prohibited by the Equal Remuneration Act of 1976 (sec. 5, as amended in 1987). In practice, however, in many rural areas women’s access to employment is restricted by cultural factors such as female seclusion (purdah) and the perception of women’s abstention from work as an indicator of the social status and success of the husband. Moreover, a gender division of labour remains widespread, with women concentrated in “feminine” jobs, particularly low-skill, low-pay agricultural work (e.g. weeders) (Jha et al., 1998; GoI, n.d.).

With regard to treatment, the Equal Remuneration Act of 1976, as amended, prohibits discrimination in employment conditions (including promotion, training and transfer) (sec. 5, as amended in 1987). On the other hand, protective legislation prohibits women’s night work in a number of sectors. As for agriculture, the Plantations Labour Act of 1951 prohibits the employment of women between 19 hours and 6 hours (except for midwives and nurses) unless there is a permission from the state government (sec. 25).

The Equal Remuneration Act states the principle of equal remuneration for the “same work or work of a similar nature” (though not for work of equal value; sec. 4). In complying with this requirement, employers cannot reduce wages; therefore, in case of existing sex discrimination, the higher wage is payable to workers of both sexes (sec. 4). The equal remuneration principle is also guaranteed in the case law (Mackinnon Mackenzie & Co. v. Audrey D’Costa, 1987 2 SCC 469).

In practice, substantial gender pay gaps exist: women’s wages are lower than men’s in all states of the federation (on average, 30 percent lower); there is no institutional machinery for the implementation of minimum wage legislation in the agricultural sector (United Nations, 1997; Menon-Sen and Kumar, 2001). According to the Centre of Indian Trade Unions (CITU), the 1976 Act is mainly applied to public sector industries, while gender pay gaps persist in other industries, including agriculture, where employers avoid the application of the minimum wage legislation by paying workers on a piece-rate basis; in these sectors, female workers are paid considerably lower wages than male workers (CEACR (100), 1998).

Indian law contains no specific provision on sexual harassment in the workplace. However, the Supreme Court developed guidelines in Vishaka v. State of Rajasthan and Others (AIR 1997 SC 3011). The guidelines are to be applied in all workplaces, and build on the Indian Constitution, on the CEDAW and on General Recommendation No. 19 of the CEDAW Committee (on violence against women).

Maternity leave is governed by the Maternity Benefit Act of 1961, which applies to plantations and to other establishments with more than ten employees (sec. 2). Pregnant workers have a right to 12-week paid maternity leave (secs. 4 and 6(2)). A six-week leave is granted in case of miscarriage or termination of pregnancy (sec. 9). An additional one-month leave is provided in case of illness arising out of pregnancy, delivery, miscarriage or termination of pregnancy (sec. 10). Maternity benefits are equivalent to the average daily wage of the woman worker (sec. 5). Discharge or dismissal of a woman on maternity leave, as well as the varying of her working conditions at her disadvantage, are prohibited (sec. 12).

Pregnant workers have the right not to perform arduous work, or work which involves long hours of standing or which is likely to interfere with the pregnancy, the normal development of the foetus, adversely affect health or cause a miscarriage (Maternity Benefit Act, sec. 4(3)). No deductions from wages can be made because of the changed nature of the work performed (sec. 13 of the same Act). Nursing women have a right to two nursing breaks per day until the child attains the age of fifteen months, without deductions from the wage (secs. 11 and 13). Under the Plantations Labour Act of 1951, employers with more than 50 women workers (or with women workers having a number of children under six years old of 20 or more) must provide crèche facilities (sec. 12).

The laws on social security (Employees’ Provident Fund and Miscellaneous Provisions Act 1952 and the Payment of Gratuity Act 1972) apply equally to men and women.

3.6.3. The Philippines

Agricultural labour is governed by the Labour Code of 1974, as amended (art. 6)[44]. Article 3 of the Code declares that the state is to ensure equal work opportunities regardless of sex. However, sex discrimination with regard to recruitment is not explicitly prohibited.

Article 136 of the Code declares that it is unlawful for an employer “to require as a condition of employment or continuation of employment that a woman employee shall not get married, or to stipulate expressly or tacitly that upon getting married, a woman employee shall be deemed resigned or separated, or to actually dismiss, discharge, discriminate or otherwise prejudice a woman employee merely by reason of her marriage”.

As for treatment, sex discrimination with respect to terms and conditions of employment is prohibited. Acts of discrimination include “payment of a lesser compensation, including wage, salary or other form of remuneration and fringe benefits, to a female employees as against a male employee, for work of equal value”, and “favouring a male employee over a female employee with respect to promotion, training opportunities, study and scholarship grants solely on account of their sexes”. A wilful violation of this provision entails criminal responsibility (Labour Code, art. 135). Discrimination against indigenous women in the areas of employment and training is prohibited under sections 21, 23 and 25 of the Indigenous Peoples Rights Act of 1997.

Women’s night work in agricultural undertakings is prohibited unless women are granted a period of rest of at least nine consecutive hours (Labour Code, art. 130(c)). The Secretary of Labour and Employment is to set standards to ensure the safety and health of women employees and to enact regulations requiring employers to provide facilities for women workers (separate toilets, nurseries, etc.) (Labour Code, art. 132). Sexual harassment in the workplace is prohibited by the Anti-Sexual Harassment Act of 1995.

Notwithstanding these provisions, gender labour differentiation remains. Women are concentrated in “feminine” occupations. As for agriculture, while men are considered “farmers” (i.e. farm heads), women are usually referred to as “farm workers” (Roces, 2000). Gender pay gaps also remain. In 1990, women’s average wage was about 40 percent that of men. In this regard, agriculture is a particularly difficult sector, as in 1989 women’s average income was about 10 percent that of men (United Nations, 1995). A considerable number of female agricultural workers (about 50 percent) are unpaid (Roces, 2000)[45].

Pregnant workers have the right to a six-week fully paid maternity leave (two weeks before and four weeks after childbirth), extendable without remuneration in case of illness arising out of pregnancy, delivery, abortion or miscarriage. However, maternity benefits are granted only for the first four deliveries (Labour Code, art. 133). Maternity benefits are to be paid by the employer, although under the Maternity Benefits Act of 1992 full maternity benefits are paid by the Social Security System for 60 days for women workers meeting specified requirements. Employers cannot discharge pregnant workers on account of their pregnancy or while on maternity leave, nor discharge or refuse their admission upon returning to their work for fear that they may be pregnant again (Labour Code, art. 137(a)(2) and (3)).

As for social security, the Social Security System covers all employees, without making distinctions on the basis of sex or gender (Labour Code, art. 168, and the Social Security Act of 1997, sec. 9(a)). Housewives may be covered by the Social Security System on a voluntary basis (Social Security Act, sec. 9(b))[46].

3.7. The Pacific region

3.7.1. Regional overview

Of all the countries of the region, only Australia, New Zealand and Papua New Guinea have ratified ILO Conventions 100 and 111. In several countries, labour legislation does not explicitly prohibit discrimination on the basis of sex/gender (e.g. Fiji, Samoa, Tonga). Papua New Guinea is an exception, as article 48 of the Constitution states that “every person” has a right to freedom of choice of employment and section 97 of the Employment Act prohibits discrimination on the basis of sex. The Employment Act of Vanuatu prohibits sex discrimination but only with regard to remuneration (sec. 8).

Maternity leave is six weeks in Papua New Guinea and 12 weeks in the Solomon Islands. Maternity benefits are generally not paid (e.g. Papua New Guinea, Australia and New Zealand) or very low (25 percent of the wage in Solomon Islands); when benefit payment is envisaged, it is usually paid by the employer (e.g. Solomon Islands) (United Nations, 2000, updated to 1998). Protection from dismissal during pregnancy is envisaged in some countries, but the covered period is usually very limited (a few days beyond maternity leave in Fiji; three weeks beyond maternity leave in Vanuatu).

3.7.2. Fiji

Fiji has not ratified any of the relevant ILO Conventions. With a Cabinet Decision of 7 December 2001, the government decided to ratify five ILO Conventions, including Conventions 100 and 111. However, at the moment of writing no step in this direction had been taken yet.

Agricultural labour is governed by the Employment Act (Cap 92), which is currently being reviewed by the government (GoF, 1999). However, service contracts for the harvesting of sugar cane, which is Fiji’s major cash crop, are excluded from the scope of the Act by the Employment (Application) Order (sec. 3 and second schedule).

The Employment Act does not specifically state the principle of non-discrimination on the basis of sex or gender. It contains a ban on women’s night work, which does not apply to the agricultural sector (sec. 65). No provision specifically deals with sexual harassment in the workplace.

Maternity protection is very limited. Maternity leave is of 84 days, to be divided in two periods of 42 days each before and after childbirth (sec. 74(1)). Protection from dismissal extends to three months, i.e. just a few days beyond the maternity leave period (sec. 79(1)). Maternity benefits are determined through a flat rate amount, which is very low and in most cases lower than full pay (US$1.50 per day; sec. 74(1)). Maternity benefits are paid integrally by the employer (sec. 74). Lack of pregnancy notification to the employer within the terms, and defect or inaccuracy of the notification where the defect or inaccuracy causes prejudice to the employer, entail loss of maternity benefits (sec. 77).

Under the Married Women’s Property Act of 1892 (Cap 37), a married woman is entitled to hold and dispose of her separate property, including “any wages, earnings, money and property gained or acquired by her in any employment, trade or occupation in which she is engaged or carries on separately from her husband” (sec. 4).

Although there has been an increase in women’s participation in formal employment, women remain confined to low paying jobs, and concentrated in the informal sector (with little or no security), principally in subsistence agriculture. There is little awareness of labour rights among women, including on maternity leave legislation. Discriminatory practices include unequal remuneration, unequal training and career opportunities, and sexual harassment (GoF, 1999).

3.8. Europe

3.8.1. Regional overview

While the ECHR is silent on socio-economic rights, the European Social Charter, as revised, recognises the right of all workers to equal opportunities and equal treatment in employment and occupation, without discrimination on the ground of sex, and states the principle of equal remuneration for work of equal value. The Charter also guarantees the right to paid maternity leave for at least 12 weeks, funded by social security institutions or by public funds.

For countries members of the European Union, EU legislation and case law on non-discrimination in employment applies. Article 2 of the EC Treaty includes gender equality among the objectives of the European Community. Under article 13 of the EC Treaty, the Council of Ministers may take action to combat sex discrimination. Article 141(1) (formerly 119) of the EC Treaty (as amended) states the principle of equal remuneration for work of equal value. Article 141(4) provides for affirmative action. Equality of treatment for men and women in access to employment and vocational training is stated in Directive 76/207 of 1976, while the principle of equal pay for equal work is implemented by Directive 75/117 of 1975. Under Directive 97/80 of 1997, when persons alleging discrimination violating Directives 117 and 207 establish prima facie discrimination (i.e. “facts from which it may be presumed that there has been direct or indirect discrimination”), the burden of proof is on the employer to prove that no violation occurred. A three-month parental leave is granted to both parents to tend children up to eight years old (Directive 96/34 of 1996). A vast case law on gender equality in the workplace exists within EU law.

The principle of non-discrimination on the basis of sex/gender is stated in all Western legal systems. Some countries also provide for special measures to promote women’s employment. However, there are reports that in the rural areas of some EU states, women’s unemployment rates are higher than men’s, due to traditional attitudes on the role of men and women and to the shortage of transport and care facilities (Braithwaite, 1996).

As for Central and Eastern European countries, the principle of equal treatment for men and women is affirmed e.g. in Croatia (Labour Act 1995, art. 82) and in Romania (art. 38(4) of the Constitution and Labour Code, arts. 14 and 151(1)). A considerable gender pay gap has however been documented for several countries (UNICEF, 1999).

As for maternity leave, most countries comply with the international standard of 12 weeks. Cash benefits range from 75 percent of the wage (Greece) to 100 percent (most countries: e.g. Germany, Poland, Russia); in some cases, benefits vary during the leave period (e.g. 82 percent of the wage for 30 days and 75 percent thereafter in Belgium). In most European countries maternity benefits are paid through social security (Belarus, France, Germany, Hungary, Romania, United Kingdom) (United Nations, 2000, updated to 1998). Pregnant women are usually protected from discrimination or dismissal (e.g. in Croatia, Labour Code 1995, art. 55).

3.8.2. Italy

In Italy, agricultural labour is governed by general labour law, although some aspects are governed by specific norms, such as recruitment procedures, work reinstatement following unjust dismissal, employment contract duration and social security[47]. Moreover, the above-mentioned norms of EU law apply; Law 52 of 1996 provided for the implementation of EC Directives relating to equal opportunities (art. 18).

Direct and indirect discrimination on the basis of sex, marital or family status or pregnancy is prohibited with regard to both access and treatment. Where the person alleging discrimination proves facts establishing prima facie discrimination, the burden is on the employer to prove the absence of discrimination. The equal remuneration principle is stated with regard to both equal work and work of equal value (Article 37 of the Constitution; Law 903 of 1977, arts. 1-3; Law 125 of 1991, art. 4(6), as amended; Legislative Decree 151 of 2001, art. 3).

Contractual clauses envisaging termination of the employment of women workers in case of marriage, as well as actual dismissal for marriage and worker’s resignation within one year from marriage (unless confirmed before the labour office), are null and void, and the worker has the right to be reinstated in her position. Dismissals within one year from marriage are presumed to be motivated on grounds of marriage unless the employer proves otherwise (Law 7 of 1963, art. 1).

Affirmative action measures to promote women’s employment and de facto equality of opportunity can be undertaken by employers, with public funding (Law 125 of 1991, as amended by Legislative Decree 196 of 2000). Projects implemented so far concerned mainly access to male-dominated sectors and changes in the work organization and time. The implementation of the law is monitored by the National Committee for Equal Opportunities established within the Ministry for Labour. The major problems encountered in the implementation of the law include limited resources and cumbersome administrative procedures (GoIt, 1999).

Maternity leave is of two months before childbirth (three months for dangerous and heavy jobs) and three months after childbirth, extendable for periods of two months in cases of illness arising out of pregnancy or childbirth. Maternity benefits are equivalent to 80 percent of the remuneration. For women workers in sharecropping undertakings (mezzadria and colonia), maternity benefits are 80 percent of the average daily income, as determined by the Ministry of Labour every two years (Law 1204 of 1971 and Legislative Decree 151 of 2001). Benefits are paid by the social security institution (INPS), funded through payroll taxes (increasing the cost of labour, though without distinction on the basis of sex), although there is a trend toward the gradual transfer of the funding for maternity benefits to the general taxation system (GoIt, 1999).

Women workers cannot be dismissed from the beginning of pregnancy until the child reaches the age of one year; in case of dismissal, they have the right to be reinstated. Seasonal workers have the right to priority in seasonal recruitment. Women cannot be required to perform dangerous, tiring or unhealthy jobs during pregnancy and until seven months after childbirth, without wage deductions. Two nursing breaks per day are allowed (Laws 1204 of 1971 and 53 of 2000; Legislative Decree 151 of 2001). The safety and hygiene of working conditions for pregnant and nursing women are protected by Legislative Decree 645 of 1996.

In case of death, grave inability or abandonment of the mother, or in case of child custody to the father, the latter has the right to a paternity leave on the same terms of the maternity leave (Law 903, art. 6bis, and Legislative Decree 151 (2001), arts. 28 and 29). Parental leave of up to 10 months, until the child reaches the age of 8, is granted to both parents (Law 53 (2000), art. 3, and Legislative Decree 151 of 2001, art. 32).

As for social security, family benefits and pension increases for family dependants can be paid to working or retired women. Payment of social security benefits to the surviving spouse of the insured worker applies equally to men and women (Law 903 of 1977, arts. 9-12).

Italy, especially in the South, has a large informal economy compared to other developed countries. In the informal sector, labour legislation, including its provisions on gender equality, is not applied. Although gender-disaggregated data on this sector are scarce, women constitute a substantial portion of the informal labour force, including in the agricultural sector. Legislative efforts to promote the regularisation of the informal sector have been made (e.g. Laws 608 of 1996 and 196 of 1997, envisaging incentives for informal sector enterprises to register) (GoIt, 1999). Even in the formal sector of the economy, however, compliance problems may arise. A gender division of occupations and a gender pay gap still exist in several sectors, with substantial cross-sectoral variation (CEACR (100), 1998).

3.9. Conclusion

In the light of the analysis of the legislation of the covered countries, it is possible to highlight some key issues affecting the labour rights of women agricultural workers. First, women’s access to employment may be restricted by family law norms requiring the authorization of the husband (e.g. in some Mexican states). In several countries, these norms have been successfully challenged by women at national and international level, and legislative reforms have been adopted to repeal them (e.g. in Guatemala). However, even where these norms are repealed, there are reports that marital authority continues to be applied in practice, especially in rural areas (e.g. Brazil).

Second, while labour legislation in most of the covered countries explicitly prohibits sex discrimination, in some cases labour laws are silent on this issue (e.g. Kenya and Fiji). In yet other cases, while the non-discrimination principle is formally stated, no sanction is envisaged for violations (Burkina Faso). In most of the covered countries (with some exceptions; e.g. Italy), sex discrimination in remuneration is prohibited only with reference to “equal work”, not with reference to the internationally recognized criterion of “work of equal value”. In all these cases, discriminatory practices on the workplace are de jure or de facto allowed. Affirmative-action measures are envisaged only in some of the covered countries (e.g. Brazil, South Africa and Italy).

Third, women’s access to agricultural work may be hindered by “protective” legislation prohibiting women’s night work in the agricultural sector, while international conventions prohibit it only with regard to some industrial occupations (e.g. India).

Fourth, only some countries have adopted legislation addressing sexual harassment on the workplace (the Philippines). In India, the legislative lacuna was filled by guidelines adopted by the judiciary. In other countries, sexual harassment is left unaddressed (Kenya and Fiji). Field studies document that this is a major problem affecting women working in plantations.

Fifth, women enjoy special protection in case of maternity in all the countries examined. However, requirements for the application of this protection (e.g. in terms of duration of previous employment and of documentation to be produced) may be very demanding, and can de jure or de facto exclude women agricultural workers (who are concentrated in seasonal and temporary labour force). Furthermore, maternity leave is often considerably shorter than internationally recognized standards (Fiji and Kenya). In addition, while in some countries maternity leave is fully paid, in others it is unpaid or it covers only a limited portion of the full wage (Fiji, Italy, South Africa and Tunisia). Finally, where maternity benefits are wholly or in part paid by the employer (Burkina Faso, Fiji, India, Mexico and the Philippines), women’s access to employment is hindered by their higher labour costs.

Finally, women’s labour rights are severely limited by the lack of implementation of labour legislation. For example, while most countries state the equal pay principle, gender pay gaps are reported for most of the examined countries. Pregnancy testing and even sterilisation practices have been documented in some countries (e.g. Mexico and Brazil). In plantations, women often work without contract on a daily and piece-work basis (as documented e.g. for Mexico, Brazil and South Africa). This deprives them of the protection accorded by labour law. In other cases, employment contracts are signed by the household head, and women provide labour as family members of employees; in these cases, wages are paid to the household head with regard to the global labour provided by the household (e.g. as documented for Tunisia and South Africa). More generally, a gender division of labour in agricultural work, whereby women are concentrated in low-pay, temporary agricultural work, is widespread in most of the covered countries, although to very different degrees.

Table 6. Sex/gender discrimination in labour rights


Access

Treatment (general)

Treatment (pay)

Social security

Brazil

ND; SM; F

ND

ND; F

GN

Burkina Faso

ND

ND

ND


Fiji

GN

GN; F

GN; F


India

ND; F

ND

ND; F

GN

Italy

ND; SM

ND

ND

GN; ND

Kenya

GN

GN

GN

J/D

Mexico

ND; J/D

ND; F

ND; F


Philippines

GN; F

ND

ND; F

GN

South Africa

ND; SM; F

ND; F

ND; F

ND

Tunisia

ND; F

ND

ND; F


GN Gender neutral / non-discriminatory

ND Non-discrimination / equal-rights principle explicitly stated

SM Special measures to advance women

J/D De jure direct discrimination

J/I De jure indirect discrimination

F De facto discrimination reported in the literature reviewed

Where two or more acronyms are included, they refer to different aspects of relevant legislation and/or to a gap between law and practice.

Table 7. Maternity leave benefits


Guarantee against dismissal

Duration of maternity leave

Percentage of wage paid during covered period

Provider of coverage

Brazil

Yes

120 days

100

Social Security

Burkina Faso

No

14 weeks

100

Employer / Social Security

Fiji

Yes

84 days

Flat rate

Employer

India

Yes

12 weeks

100

Employer / Social Security

Italy

Yes

5 months

80

Social Security

Kenya

No

2 months

100

Employer

Mexico

Yes

12 weeks

100

Employer / Social Security

Philippines

Yes

6 weeks

100

Employer / Social Security

South Africa

Yes

4 months

45

Unemployment Insurance

Tunisia

No

30 days

67

Social Security

Source: United Nations (2000), with changes and integrations.


[34] The informal economy is object of considerable debate. While some consider it as a dynamic sector providing small-scale employment opportunities for the rural poor, others see it as a place of exploitation. This study does not take any position in this debate, and merely remarks, from a legal point of view, the lack of application of labour legislation.
[35] As for non-agricultural occupations, discriminatory practices in export processing zones (maquiladoras) (where more women than men are employed) include e.g. compulsory pregnancy testing as condition for employment (CEACR (111), 1999; CEDAW, 1998).
[36] This requirement may be difficult to meet for temporary plantation workers without contract.
[37] E.g. for documentation required for maternity benefits, see article 106 of Law 8213 (1991), as amended by article 3 of Law 8861 (1994).
[38] Information found on the web site of the ILO (www.ilo.org).
[39] Women’s wages as percentage of men’s were 55.6 percent in 1977, 62.5 percent in 1980 and 75.6 percent in 1986 (House-Midamba, 1993).
[40] An amendment to the Employment Act to allow women to cumulate maternity and annual leave was discussed in the parliament in 1998 but not adopted (CRLP, 2001).
[41] A revision of the Labour Code is currently underway.
[42] Cases quoted in the web site of the ILO. Neither case directly concerns agricultural labour.
[43] Case quoted in the web site of the ILO (www.ilo.org).
[44] At the moment of writing, the parliament is discussing the adoption of a “Magna Charta for Rural Workers”, the insertion of a chapter on plantation workers in the Labour Code, and the amendment of the formulation of the equal pay principle.
[45] In other sectors, however, discrimination is considerably less acute. The Philippines has much higher numbers of women employed in administrative, managerial, professional and technical occupations than other Southeast Asian countries (Malaysia, Indonesia, etc.) (Roces, 2000).
[46] Given the high number of Filipinos working abroad (especially women), the Philippines has legislation specifically protecting migrant workers (Migrant Workers and Overseas Filipinos Act of 1995; e.g. section 2(d) states the principle of equality of men and women); as migrant workers are engaged mainly in non-agricultural occupations (primarily domestic work), this legislation is not covered in this study.
[47] For instance, Law 83 of 1970 allows direct recruitment (instead of recruitment through labour offices) for agricultural undertakings; Law 196 of 1997 allows the experimental use (on the basis of collective agreements) of temporary labour through intermediaries in the agricultural sector; article 18(1) of Law 300 (1970) applies reinstatement following unjust dismissal to agricultural undertakings employing five or more (instead of 15 or more) workers; article1(2)(a) of Law 230 of 1960 and Decree 1525 of 1963 allow fixed term contracts for seasonal agricultural work.

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