Law on reconciliation of work and family life examined
In summer 2001, Spain's law on the reconciliation of work and family life has been in force for around 18 months. It lays the basis for sharing family and domestic responsibilities, thus offering an opportunity for progress in equal opportunities for men and women. We examine the law and its effects, and criticisms that it is not sufficiently ambitious, because it covers only the working environment rather than adopting the integrated approach laid down in EU Directives on the subject.
On 7 November 1999, Law 39/1999 "to promote the reconciliation of work and family life of employed persons" (para promover la conciliación de la vida familiar y laboral de las personas trabajadoras) came into force (ES9911165F). It reformed Spain's rules on family-related leave, which are spread over several pieces of legislation. Extensive amendments were thus made to the Workers' Statute (Estatuto de los Trabajadores), the Labour Procedure Law (Ley de Procedimiento Laboral), the Labour Risks Prevention Law (Ley de Prevención de Riesgos Laborales), the General Social Security Act (Ley General de la Seguridad Social) and the legislation that regulates the general working conditions of public employees and civil servants. The new law was to be completed by governmental regulations on the related social security benefits.
The law was based on:
- the transposition of the EU Directives on the health and safety at work of pregnant workers and workers who have recently given birth or are breastfeeding (92/85/EEC) and on parental leave (96/34/EC);
- the 1981 International Labour Organisation (ILO) Convention No. 156 on workers with family responsibilities and accompanying Recommendation No. 165, and the conclusions of the United Nations Fourth World Conference on Women in Beijing, 1995; and
- at national level, Articles 9.2, 14 and 39 of the Spanish Constitution, which respectively cover the fostering of conditions so that liberty and equality of persons are real and effective, the principle of equality before the law, non-discrimination, and the social, economic and legal protection of the family.
The innovations and changes that were introduced by the new law improved the previous legislation, particularly with regard to time off work for family-related reasons, protection from dismissal and protection of pregnant workers. However, though the intention was to complete the transposition of the two EU Directives, the law has been criticised by trade unions for failing to do so on certain points. It does not cover individual parental leave for women and men without distinction, as laid down in the parental leave Directive, nor does it cover the provisions of the maternity protection Directive on the protection of women who are breastfeeding in jobs that involves a serious risk for the baby, and the Directive's list of dangerous activities.
Assessment of the law
Law 39/1999 was drawn up from the viewpoint of work and employment, and modified specific aspects of the Spanish legislation in this area. However, in the two EU Directives the approach to reconciling work and family life is more general, integrating the different aspects of the reconciliation, only one of which is work. This approach has, according to critics, led to the development of an unambitious regulation that has received praise from the social partners but has wasted the opportunity of taking a broad approach to the subject and furthering equal opportunities for women and men in all areas of society.
A further criticism is that, although some rights are reserved for women, the law is neutral, being aimed at both men and women. This neutrality may give rise to major gender inequalities, because when an initial situation is unequal, the application of equal measures only increases the inequality.
Thus, though the law offers advantages to all workers, it is likely that women will be the major beneficiaries of them. Discrimination against women in employment - which is reflected in their lower participation in the active population, the greater instability of their employment and pay discrimination (ES0105242F) - mean that they are in a situation of inferiority in comparison with men, and therefore that women, rather than their husbands or male partners, take advantage of the new rights. According to figures from the National Institute of Social Security (Instituto Nacional de la Seguridad Social, INSS), in 2000 only 0.97% of beneficiaries of parental leave were men. The new law may therefore have a perverse effect by perpetuating the division of roles between women and men.
Furthermore, unstable employment limits the rights provided by the legislation, because in cases in which the employer's agreement is necessary for the exercise of the rights, the employer's will often prevails, and because temporary contracts are too short to allow the rights to be exercised.
It should also be taken into account that the law is aimed at the working population, so if a woman is not in the labour market, the father of her child cannot exercise the right to parental leave, which limits the co-participation of men in family responsibilities.
Therefore, though the law is positive and represents a considerable step forward in reconciling work with family life, it is seen by critics as lacking positive action measures that reduce inequality and take an integrated approach to the issue. For example, the law could have included the right to a shorter working day and family-related leave for men as an individual right, or measures to promote equal opportunities in the employment of women and the provision of care services. In the opinion of the trade unions, this would have represented a greater step forward in guarantees and rights for workers. A more open and integrated law –not only limited to the traditional family model - would have fostered a change of mentality towards the compatibility of work and family life and the acceptance of family responsibilities by men.
In summer 2001, the law on reconciling work and family life has been in force for only about 18 months, and it is therefore too early properly to assess the results. A system for monitoring the law's implementation with specific indicators that provide up-to-date information on its application has yet to be agreed. At present, the figures on the law's effects are not unified in a single source and many have not even been published. However, efforts are beginning to be made to obtain more specific figures, such as the abovementioned breakdown by sex of the beneficiaries of parental leave in 2000. This will be facilitated by the recommendations of the European Council on reconciling work with family and work life based on indicators proposed during the French EU Presidency of the second half of 2000.
Also in the framework of a policy of reconciling work with family life, complementary measures to support the family and the integration of women in employment are laid down in the Spanish National Action Plan (NAP) for Employment, in response to the EU Employment Guidelines (ES0106246F). For example, according to the assessment of the 2000 NAP contained in the 2001 Plan, a scheme for the creation of jobs in "proximity services", in collaboration with local governments and public employment services, has resulted in 430 projects with 6,540 workers taking part and funding of EUR 25.5 million.
In 2001, as complementary measures, the NAP states that it is intended to: continue these projects; foster the reintegration of women and men in active life, by promoting access to training contracts for persons who have been unemployed for over three years; promote the recruitment of women in the 24 months following childbirth and workers on maternity, adoption or fostering leave, though subsidies of 100% of the employers' social security payments; extend care programmes for children up to the age of three; introduce programmes of qualified reintegration; and carry out awareness-raising campaigns and make progress in the regulatory development of the law on reconciliation of work and family life.
Questions related to this subject have also begun to appear in trade union bargaining platforms, mainly with regard to equal rights for common-law couples, but it is too early for this to have had an effect on collective agreements. (Cristina García Comas, Fundació CIREM)