LAST week, the Senate approved on third and final reading Senate Bill No. 2982, granting paid maternity leave of 100 days to employees of government offices and private companies.
The bill seeks to amend existing laws that give 60 days maternity leave to government employees, and 60 to 78 days to employees in the private sector for normal delivery and caesarean section, respectively.
In addition, the employee can, at her option, enjoy additional 30 days maternity leave without pay, subject to the condition that she notifies her employer in writing of her intention to go on further leave at least 45 days before the end of her regular maternity leave.
According to the bill’s author, the extended maternity leave aims to “provide mothers with ample transition time to regain health and overall wellness as well as to assume their maternal roles before resuming full-time work.”
There is no limit on the number of times an employee can go on paid maternity leave. The bill expressly repeals Article 133 of the Labor Code, which limits the right to maternity leave with pay to four deliveries.
The bill will approximate the maternity leaves granted by Vietnam, which is from 120 to 180 days depending on the working conditions and nature of the work, and Singapore’s 112 days.
Whether the House of Representatives will go along with this bill so it can become a law remains to be seen.
Substitution
There is no question about the need to give women who have just given birth ample time to recuperate after delivery and take care of their babies before returning to work.
Rare is the mother who would exchange the company of her newborn for that of her colleagues in the workplace.
The maternal instinct is considered one of the strongest, if not the strongest, element of a woman’s life, sometimes even surpassing her relationship with her husband.
If the bill becomes a law, government offices will have little problem complying with it. The tasks of the employee on maternity leave can be assigned to another employee or spread around without having to pay extra for the additional assignment or overtime work, if any.
In the government, work performed beyond office hours is seldom compensated; instead the employee concerned is, when permissible, given extra days off corresponding to the overtime work.
For businesses that are doing well and have set staffing procedures, the extended maternity leave will mean asking other employees to cover for the mother on leave or, if this arrangement is not workable, hiring contractual employees to temporarily take on the job.
Discrimination
A similar approach may not be feasible for small and medium scale enterprises, or establishments that have just started operations or, if already operational, are in the red.
To avoid the additional costs that an extended maternity leave will entail, the cost-conscious employer may opt to give preferential treatment to male applicants to fill up vacant work slots.
It’s true the law prohibits discrimination in employment by reason of sex or gender. But proving bias or prejudice in the workplace is not easy.
In the absence of a “smoking gun,” e.g. written instructions not to entertain female job applicants or put them at the bottom of the hiring priority list, a complaint for work discrimination is difficult to establish.
The employer can invoke other factors, such as, safety risks or personal physical requirements, to justify the choice of a male employee over a female employee.
Besides, considering the slow pace of justice and the costs of pursuing litigation in our country, the discriminated female applicant may, for practical reasons, prefer to look for another job rather than insist on her employment by a male-centric employer.
Outsourcing
If the job vacancy requires female hands or expertise and the employer is not keen on shouldering the costs of extended maternity leave, it may employ contractual employees or outsource the work to third parties.
In contractualization, employees are hired for fixed periods of time (often in five-month increments to avoid conversion of their employment status to regular) and are not given sick or vacation leaves and other benefits attached to regular employment.
Or, the employee is taken in on pakyaw or per piece of work basis where the employee is paid a specific sum to do a certain work and his employment expires upon its completion.
Like “five months-five months employment,” the employee does not get any other employment benefits outside of a fixed wage.
Another way to avoid the financial consequences of extended maternity leave is to outsource the work to be performed by female employees.
If the law were to be strictly followed, jobs that are directly related to or essential to the business of a company cannot be outsourced or contracted out to third parties.
That’s on paper, but at the rate many of the country’s top companies are outsourcing major aspects of their operation, the exception has become the rule instead.
We hope the bill on extended maternity leave, if enacted into law, will not result in the further marginalization of female employees in the workplace.
Incidentally, male employees have reason to cry discrimination about the bill.
The Paternity Leave Act (Republic Act No. 8187) grants paternity leave to employees on condition, among others, that they are legitimately married to their wives and the leave is good only for the first four deliveries.
Under the bill, however, the mother need not be legally married and there is no limit to the number of deliveries. Unfair!
For comments, please send your e-mail to rpalabrica@inquirer.com.ph.