New law promotes reconciliation of work and family life
A new law which came into force in Spain in November 1999 reforms the whole set of rules on family-related leave arrangements, and completes the transposition of the EU Directives on maternity protection and parental leave.
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. It reforms Spain's rules on family-related leave, which are spread over several pieces of legislation. Extensive amendments are 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 will be completed by governmental regulations on the related social security benefits. Law 39/1999 also completes the transposition of the EU Directives on maternity protection (92/85/EEC) and parental leave (96/34/EC).
The policy-making process leading to the reform
In Spain, the objective of improving the reconciliation of work and family life was first formulated in programmesnational gender equal opportunities plans (inspired by successive European Commission gender equality programmes). More recently, this objective has also been formulated in the framework of family policy and employment policy. Experts state that present difficulties in combining family and work are based on the unfavourable position of Spanish women in the labour market - in 1998, the female employment rate was 34.8% in Spain compared with an EU average of 51.2% - and contribute to explaining the fact that Spain, along with Italy, has the lowest fertility rate in the EU - an average of 1.2 children per woman in 1998.
In November 1997, parliament approved a report on the family situation in Spain. This report included a recommendation to develop a family policy plan, with measures to improve the combination of work and family life, and the redistribution of tasks between women and men. From April 1998 onwards, the National Action Plan on Employment (Plan Nacional de Acción para el Empleo), in response to the EU Employment Guidelines, has established as one of its main objectives the promotion of the reconciliation of work and family life (ES9805152F), on one hand by means of improving the regulation of family leave arrangements, and on the other hand by promoting new services to care for children under three years, frail older people or other dependent relatives.
The government approved the draft law on reconciling work and family life on 14 May 1999, after having consulted the social partners. The parliamentary debate concluded five months later with the passing of the new law.
The main changes brought be the new legislation are as follows.
- Improved health and safety protection for expecting and breast-feeding mothers at work, with a new paid leave scheme for those cases where health risks in the workplace cannot be resolved.
- Improved legal employment guarantees for expectant and new mothers, and for users of family leave arrangements in general. Dismissals related to such reasons will be declared null and void.
- Mothers now have the right to transfer to the father up to 10 of their 16 paid weeks of maternity leave, provided that they take six weeks after giving birth and unless this endangers their health. This possibility was earlier restricted to the last four of these 16 weeks. Fathers can now use these weeks together with the mother.
- In the case of multiple births, working mothers will have the right to two extra weeks of leave per new born child, from the second onward.
- New adoptive and foster parents of children under six years old, or older children with special difficulties (where the child has disabilities, or in the event of international adoptions and so on), gain the same leave entitlements as new biological parents. Therefore adoption and fostering become equivalent to childbirth in relation to leave rights.
- Existing entitlements to unpaid parental leave and working time reduction (by between a third and half of normal working time) are extended to situations of taking care of a relative (up to the "second degree of consanguinity or affinity") due to severe illness, accident or old age. This family leave scheme is restricted to a maximum of one year, instead of the three-year maximum (after birth or adoption) which applies in the case of parental leave (TN9801201S).
- Present reductions in employers' social security contributions in respect of workers recruited to substitute for employees on maternity leave (ES9809182N), are extended to substitutes for self-employed people or working cooperative partners, and to the new leave scheme in the event of risk to the health of an expecting or breast-feeding mother (see above).
- There is progress towards the individualisation of entitlements. Unpaid parental leave, unpaid family leave, and working time reduction to care for a child under six years or a dependent relative are now clearly defined as individual entitlements.
- Employees entitled to working time reductions may decide, within their usual working time schedule, the extent and period of the working time reduction.
The law aims to provide a framework whereby men are entitled to make more use of family leave arrangements and working time reductions, in order to promote a better distribution of family care responsibilities between women and men.
Social partners' assessments
From the point of the view of the CC.OO and UGT trade union confederations, the new law brings some improvements. However, a number of important trade union proposals have not been accepted in the legislation:
- extending paid leave for family reasons, in particular setting up a four-weeks paternity leave scheme with receipt of social security benefits, under the same conditions as apply to maternity leave;
- improving the conditions for working time reduction;
- applying the same social security benefits as paid during maternity leave (100% of basic pay) to the new leave scheme for health risk prevention during pregnancy or breastfeeding, instead of the lower sick pay benefits (75% of basic pay, supplemented by employers under many collective agreements) which have been applied;
- devoting more public resources to childcare services and care services for older people and people with disabilities; and
- reducing employment insecurity, which affects especially women (eg 36% of female employees have a temporary job, half of them with employment contracts of less than three months) and seriously limits the use of family-related leave entitlements.
During the discussion on the draft law, the CEOE employer's organisation stated that these kinds of measures, while favouring the combination of family life and employment, risk affecting the employers' area of prerogative, and may lead to the perverse effect that companies opt to employ women to a lesser extent.
The new law stipulates that, in agreement with the social partners, educational campaigns will be promoted to raise public awareness about equal distribution of family tasks between men and women. In particular men, will be encouraged to use the possibilities to share family leave offered in the new legislation.
Law 39/1999 will have a greater legal impact than an economic one. It does not alter the central fact that under usual conditions (ie without work-related health risk for the mother or not involving multiple birth) the total duration of leave around birth (or adoption or fostering) paid by social security is still 16 weeks, when the mother fulfils contributory requirements. In 1995, the number of new maternity leave benefits paid by the National Institute of Social Security (Instituto Nacional de la Seguridad Social, INSS) was equivalent to 32.3% of the births in the same year, while 44.4% of the mothers of new-born children were economically active (data from INSS and the National Statistical Institute). Furthermore the unpaid parental leave and family leave schemes are of little use for people who do not have a permanent employment contract or who are not civil servants. During 1998, the Social Security Treasury (Tesorería de la Seguridad Social) registered 7,569 new users of the unpaid parental leave scheme, which is equivalent to approximately 2% of annual births. These figures highlight the low coverage that these measures have in practice in Spain, compared with some other EU countries. By contrast, in 1995 the number of Danish mothers receiving cash benefits associated with maternity or parental leave schemes during the first six months of the child's life was equivalent to 130% of the births registered in the year. The proportion of the days of benefit used by Danish fathers during the same period was 4.4% (based on data from the Nordic Social Statistical Committee).
From an economic perspective, the cost of short paid leaves is borne by employers, while the cost of long unpaid leaves and working time reductions to care for children is borne by users and their families. In Spain, the share of social protection benefits for family and children is 2% of total benefits, in contrast with 8% in the whole EU. It will be important to see how the new law, and the new measures foreseen to promote the reconciliation of work and family life, contribute to correcting this differential in the future years.
The experience of the EU countries that are more advanced in the field of leave arrangements and gender equality indicates that men do not increase substantially their use of leave arrangements if these are not sufficiently flexible, paid, and defined as individual rights independently of the mother. In this context, it would be important to evaluate the extent to which Spanish men increase their use of the new family leave measures. For that purpose, however, it would be necessary to improve the INSS data-collection and monitoring systems at national level. Presently. information about users' gender or duration of benefits is not available, nor other variables that would be very useful to improve knowledge about effects and outcomes of these policy measures (Anna Escobedo, CIREM Foundation).