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Polish and Turkish Legal Systems for Maternity Leave of Employees

August 2013 - Employment. Legal Developments by ADMD Law Office .

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Maternity leave (also referred as parental leave, paternity or adoption leave) is a form of an employee benefit that provides paid or unpaid time-off from work for the purposes childbirth or child welfare. Maternity leave is guaranteed mostly by the constitutions or by statutory regulations in all EU states including Poland, as well as in Turkey. This brief information note aims to summarize the systems in Turkey and in Poland.

Polish and Turkish Legal Systems for Maternity Leave of Employees

ADMD Law Office / Agata Michalewicz

 

A. Maternity Leave in Poland

 

Polish Labor Code (Journal of Laws of 1998, No. 21, item 94 with amendments Article 180§1) guarantees the following maternal leave periods for young mothers:

 

a)     20 weeks after giving birth to a child at one time,

b)     31 weeks after giving birth to two children at one time,

c)      33 weeks after giving birth to three children at one time,

d)     35 weeks after giving birth to four children at one time,

e)      37 weeks after giving birth to five or more children at one time.

 

The weeks mentioned therein are 'holiday weeks' and are defined in the Polish Labor Code as seven (7) calendar days. A female employee shall use at least two (2) weeks of maternity leave (and longer subject to preference) before the expected date of birth and the postpartum maternity leave is reduced by the time that was used before.

 

In Poland, maternity leave can only be used in off-days and cannot be replaced by its cash equivalent either at the request of employees or by a decision of the employer. It is also an inalienable right that the employee cannot waive herself or be deprived of by her employer for any reason.

 

At 17th of June 2013, an amendment to the Polish Labor Code came into force. Starting from such date, parents of all children born after December 31, 2012 shall be entitled to twenty (20) weeks of maternity leave (including the 14 weeks reserved for the mother only), six (6) weeks of additional leave and twenty-six (26) weeks of parental leave. Additional and parental leave may be used by both the father and the mother.

 

This new law also stipulates an extension of the leave to an annual parental leave of a total of fifty-two (52) weeks. Parents will be eligible to a twenty (20) week maternity leave including fourteen (14) weeks only for mothers, six (6) additional maternity leave weeks for both parents and twenty-six (26) weeks of parental leave for both parents.

 

Currently the maternity allowance (paid salary) during the maternity leave period, equals to full (100%) of salary. In accordance with the latest amendment to the Polish Labor Code (June 17, 2013),  such allowance shall be 100% of the salary for the first twenty-six (26) weeks and only 60% of the salary for the next twenty-six (26) weeks. Accordingly, a female employee may stay with her child for a whole year while being paid some portion of her salary.

 

Maternity leave has a special treatment under the Polish legal system and the use of maternity leave is linked to the right to receive maternity benefits. At the end of the maternity leave period, the employer is obliged to re-admit the employee to work. In addition, Polish law provides an additional contractual protection (job security) to women on maternity leave. Accordingly, during pregnancy or maternity leave, their employment contract can only be terminated via written notice by the employer, in case the employer declares bankruptcy or is liquidated. Even after such termination, employees maternity leave benefits shall be secured separately by negotiations with the relevant trade union representing the female employee. (Article 177§4, Polish Labor Code).

 

Polish Labor Code enumerates basic rules regarding the rights of employees (Article 10-18), such as protection against discrimination, right to paid leave, right to rest during work hours, right to remuneration, etc. The provisions of the contracts of employees will not be upheld if they are less favorable to the employee than the provisions of the Polish Labor Code (Article 18§1).

 

B. Maternity Leave in Turkey

 

Turkish legislation guarantees a total of sixteen (16) weeks of paid maternity leave; eight (8) weeks before and eight (8) weeks after birth (Article 74, Turkish Labor Code No. 4857). In cases of a multiple pregnancy (twins or more), the maternity leave is extended to a total of eighteen (18) weeks.

 

The protection of women on maternity leave under Turkish law is similar to some European legal systems [14 weeks in Germany and 16 weeks in France, the Netherlands and Spain] but less than some others including Poland [45 weeks in Bulgaria, 52 weeks in the UK 39 of which are paid].

 

Although the maternity leave period is limited, the Turkish system allows for a non-paid leave period to the female employees up to six (6) months following the completion of the sixteen (16) weeks (or 18 weeks as the case may be) paid leave (Article 74, Turkish Labor Code). This additional leave is taken into consideration for severance calculations but is left out of the calculations for regular annual paid leave.

 

If the employee would like to work until delivery, she should submit a medical certificate confirming the pregnancy and that there are no medical contraindications to work. Upon submitting of such a report, the employee will be able to work until three (3) weeks prior to the expected date of delivery. In such cases the time spent working prior to delivery will be added to the period of maternity leave to be granted following birth.

 

Under Turkish system, the employee is not automatically entitled to receive a full salary from the employer during the maternity leave. Within this period, the employee receives only two-thirds (2/3) of the full salary from the Social Security Institution. 

 

The employee is entitled to return to the same job in which she was employed before maternity leave with the same working conditions, exactly the same as it is in Polish law regime. Other similarities can also be found in available periodic medical checkups during pregnancy in both regimes. In both systems the employer is required to grant time-off to pregnancy health examinations and this time is still counted as working time.

 

C. International Regulations on Maternity Leave

 

As members of International Labor Organization (ILO), both Poland and Turkey are obliged to comply with the ILO regulations and standards. Protecting maternity is among the priority concerns of ILO since the first International Labor Conference held in Washington D.C. at 1919, where the maternity protection regulation (Convention No.3) was adopted.

 

The most up-to-date ILO standard on maternity protection is titled 'Maternity Protection Convention, 2000 No.183'. Unfortunately, neither Poland nor Turkey has ratified this document. [Maternity Protection Convention (Revised), 1952 (No. 103) is ratified only by Poland and this convention states that the minimum maternity leave shall be 14 weeks]. There are no standards of maternity leave that Turkey has ratified yet.

 

In EU, maternity leave must include a period of at least two (2) weeks allocated before and/or after confinement as stipulated by EU Directive 92/85/EEC [European Economic Community,1992, Article 8(2)]. Although many EU countries provide longer periods of compulsory leave, still a number of EU countries provide this two (2) week minimum [two-week compulsory maternity leave periods include Denmark (after birth), Iceland (after birth) and the United Kingdom (after birth)]. On the other hand, many other EU countries provide longer periods of compulsory leave [Austria mandates leave of 8 weeks before and 8 weeks after birth, and Belgium prohibits employment for 1 week before birth and 9 weeks after birth].

 

Currently, 119 countries meet the ILO standard of twelve (12) weeks included in the Convention on the Maternity Protection (No. 183), with 62 of those countries providing for fourteen (14) weeks or more. Only 25 countries mandate a maternity leave of less than twelve (12) weeks.

 

Both Turkey and Poland meet the ILO's minimum requirements.

 

D. Conclusion

 

According to a new report on maternity protection at work by the International Labor Office (ILO), more than 120 countries around the world provide paid maternity leave and health benefits by law, including most industrialized nations except Australia, New Zealand and the United States. The report finds that women provide the main source of income in some 30% of all households worldwide. In Europe, 59% of working women supply half or more of their family's household income.

 

The report reveals that pregnancy and childcare are important constraints to women's employment. In Poland overall employment rates for the years 2008-2012 reached 48%. Still, in Poland the discrimination of pregnant women is a problem and it is a common phenomenon during a job interview that women are asked whether they plan to have children. Accordingly, many Polish women still postpone motherhood due fears  of losing job opportunities.

 

Turkey has one of the lowest overall employment rates for women in the OECD. As stated in ‚ÄėFemale Labor Force Participation in Turkey: Trends, Determinants, and Policy Framework,' a report drafted jointly by Turkey's State Planning Organization and the World Bank, the share of women holding or looking for jobs in 2008 was below 22% as compared to an average of 62% in OECD countries and to an average of 33% in a group of selected comparison countries with similar levels of economic development. In addition, male employees are not eligible for parental leave in Turkey where in Poland, the father of a child can use parental leave but fourteen (14) weeks of the total time is still reserved only for the mother.

 

Most female employees suffer from insufficient breastfeeding time and maternity leave in Turkey. Only 1.3% of newborns in Turkey are breastfed exclusively during the first six (6) months, according to data provided by the Turkey office of the United Nations Children's Fund, UNICEF.

 

In order to reach such improved statistics for women work force, both Poland and Turkey should improve their systems of maternity leave and also include male employees within the system in order to boost work efficiency and equality.