Re-examined proposal for a COUNCIL DIRECTIVE concerning measures to encourage improvements in the safety and health of pregnant workers, women workers who have recently given birth and those who are breastfeeding
Date: 1992-06-10
Institutions: European Commission
Subjects: care of mothers and infants, female work, humanisation of work, job security, motherhood, occupational safety

COMMISSION OF THE EUROPEAN  COMMUNITIES 

C0MC92) 259 final - SYN 303 

Brussels, 10 June 1992 

Re-examined proposal  for a 

COUNCIL DIRECTIVE 

concerning measures to encourage  improvements  in the safety and health of 
pregnant workers, women workers who have recently given birth and those 
who are breastfeeding. 

(presented by the Commission pursuant  to Article 149.2(d) 
of the EEC treaty) 

-  2 -

Explanatory memorandum 

The  initial  proposal  for  this  directive  was  presented  by  the  Commission 
on  17 October  1990(1>. 

This proposal  for  a Council  directive  aims at  establishing  minimum  ievels 
of  safety  and  protection  of  the  health  at  work  of  pregnant  women,  women 
who  have  recently  given  birth  and  nursing  mothers. 

The  European  Parliament  (at  the  first  reading)  and  the  Economic  and 
Social  Committee  gave  their  opinions  on  12 December  1990  and  20 November 
1990 respectively. 

The  Commission  forwarded  an  amended  proposal^2)  to  Council  on  3 January 
1991 . 

On  19 December  1991  the Council  approved  a  common  position  incorporating 
amendments  introduced  in the amended  proposal  from  the Commission  and, as 
a  result,  some  amendments  proposed  by  the  European  Parliament  at  the 
first  reading. 

The  European  Parliament  examined  the  common  position  at  a second  reading 
on  13 May  1992 and  adopted  it subject  to  17 amendments. 

Of  the  17  amendments,  the  Commission  approved  11,  either  in  their 
entirety  or  partly,  in the  reexamined  proposal. 

It turned  down  six  amendments, namely  1, 5, 6,  16, 18 and  19. 

The  Commission  wishes  to  make  the  following  points  regarding  the 
amendments  which  it rejected: 

(1) COM  (90) 406 final 
(2) COM  (90) 692  final 

-  3 -

Amendments  No 1 

Introduction  of maternity  leave of  16 weeks. 

Comments: 

The Commission's  proposal  (for  14 weeks)  is upheld.  This  is a 
minimum  requirement  which  offers  the Member  States  the option 
of granting  a  longer  period  of maternity  leave. 

Amendment  No 5 

Introduction  of  procedures  for  pregnant  women  at  risk  to  stop  work  on 
presentation  of  a medical  certificate. 

Comments: 

Unnecessary.  This  question  has  already  been  deaIt  with  in 
Articie  4(1)  of  the  proposal  for  a  directive  (continuous 
assessment  of  the  impact  on  pregnancy). 

Amendment  No 6 

The  possibility  for  women  who  are  breast  feeding  to  stop  work  for  one or 
more periods of  time. 

Comments: 

The  procedures  for  stopping  work  for  women  who  are  breast 
feeding  are  already  covered  Articie  5(3) of  the  proposal  for 
a direct ive. 

Amendment  No  16 

Annual  revision of  the annexes  by  independent  experts. 

Comments: 

Unnecessary.  The  procedures  for  adapting  the  annexes  to 
technical  progress  are  already  set  out  in Articie  12 of  the 
proposal  for  a directive. 

Amendment  No  18 

The  possibility  of  reviewing  the  duration  of  maternity  leave  and  the 
amount  of  maternity  benefit  in  the  Commission's  report  on  implementation 
of  the directive. 

Comments: 

This  would  be  out  of  place  in  the  Commission's  report  which 
is  intended  to  assess  implementation  of  the  directive  in  the 
various Member  States. 

-  4 -

Amendment  No 19 

Addition of  aspects of work organisation  in the assessment. 

Comments: 

Unnecessary.  Al I  these  aspects  already  feature  in  the 
proposal  for a directive: 

Pattern of  hours worked: 

This  is  already  included  in  the  organisation  of  working 
time covered  by Article 5(1). 

Night  work: 

cf. Article 7 

Mental  fatigue.  physical  stress  and  sedentary  and 
repet it ive work: 

These are already  included  in Article  3, 1, paragraph  2. 

Work  involving exposure  to great  heat: 

Already  included  in Annex  1, point  A. 

- 5 " 

27.5.92 

Re-examined proposal  for a 

Council directlve 

on the  introduction of measures to encourage 
improvements  in the safety and health at work 
of pregnant workers and workers who have recently 
given birth or are breastfeeding 

PREVIOUS TEXT 

AMENDED TEXT 

Citations and Recitals 1 to 15 

Unchanged 

Recital 16 

of 

of 

given 

health 

Whereas  measures  for  the 
organization 
work 
concerning  the  protection  of 
pregnant 
the 
workers,  workers  who  have 
recently 
or 
workers  who  are breastfeeding 
would  serve  no purpose unless 
accompanied by the maintenance 
of  rights  I inked  to  the 
employment contract, including 
maintenance  of  a  payment 
and/or  entitlement  to  an 
adeauate allowance; 

birth 

for 

measures 

Whereas 
the 
organization of work concerning the 
protection  of  the  health  of 
pregnant  workers, workers who have 
recently  given  birth  or  workers 
who  are  breastfeeding  would  serve 
no  purpose  unless  accompanied  by 
the maintenance of rights  Iinked to 
the employment  contract,  including 
maintenance  of  a  payment  and/or 
entitlement  to  an  allowance  of 
eauivalent value; 

Recital  17 

Whereas,  moreover,  provision 
concerning  maternity 
leave 
would  also  serve  no  purpose 
unless  accompanied  by  the 
maintenance  of  rights  Iinked 
to  the  employment  contract 
and/or  entitlement  to  an 
adeauate allowance, 

Whereas, 
provision 
moreover, 
concerning  maternity  leave  would 
also  serve  no  purpose  unless 
accompanied  by  the  maintenance  of 
rights  Iinked  to  the  employment 
contract  and/or  entitlement  to  an 
allowance of eauivalent value; 

Artlcles 1 and 2 

Unchanged 

9.6.92. 

1, Unchanged 

Artïcle 3 

Guidelïnes 

guidelines 

In  consuitation  with  the 
Member  States  and  assisted 
by  the  Advisory  Committee 
on  Safety,  Hygiene  and 
Healtn  Protcctlon  at  Work, 
the  Commission  shali  draw 
the 
up 
assessment of the chemical, 
physical  and  biologlcaf 
industrial 
agents 
cons i dered 
processes 
hazardous for the safety or 
heaith  of  workers  within 
the meaning of Article 2. 

and 

on 

The guidelines  referred  to  in 
the  f i rst  subparagraph  sha I I 
also  cover  movements  and 
postures, mental  and  physical 
fatigue  and  other  types  of 
physical stress connected with 
the  work  done  by  workers 
within  the meaning  of  Article 
2. 

The  guidelines  referred  to  in  the 
first subparagraph shall also cover 
movements and  postures, mentai  and 
physical  fatigue and other types of 
physical 
stress 
connected  wïth  the  work  done  by 
workers  within  the  meaning  of 
Artïcle 2. 

mental 

and 

2. The 

of 

purpose 

the 
guidelines  referred  to  in 
paragraph  1  is to serve  as 
a basis for  the  assessment 
referred  to  in  Article 
4(1). 

2. Unchanged 

To  this  end,  Member  States 
shall  bring  these  guidelines 
to  the  attention  of  ali 
employers  and  alI  femate 
their 
workers 
and/or 
representatives 
the 
respective Member State. 

in 

Articles 4 to 6 

unchanged 

-  7 -

27.5.92. 

Article  7 

Night  Work 

1.  Member  States  shall  take 
the  necessary  measures  to 
ensure  that  workers  referred 
to  in  Article  2  are  not 
obliged  to  perform  night  work 
during  their  pregnancy  and  for 
a  period  following  childbirth 
which  shall  be  determined  by 
the 
author ity 
and 
competent 
health. sublect  to submission. 
in 
the 
procedures  lald  down  by  the 
Member  States.  of  a  medical 
certificate  stating  that  this 
is necessary  for  the safety or 
health 
worker 
concerned. 

accordance 

national 

safety 

with 

the 

for 

of 

2. The measures  referred  to  in 
paragraph  1  must  entail  the 
accordance 
possibility, 
with 
legislation 
and/or  national  practice, of: 

national 

in 

(a)  transfer  to daytime work, 

1.  Member  States  shall  take  the 
necessary  measures  to  ensure  that 
workers  referred  to  in  Article  2 
are  not  obliged  to  perform  night 
work: 

(a) before  and  after  the  delivery 
of  a  child  for  a  period  of  at 
least  16  weeks.  of  which  at 
the 
least  eioht  must  be  before 
presumed  date of  delivery: 

(b) upon  presentation  of  a  medical 
the 
certificate 
necessity  for  the health of  the 
worker  referred  to  in  Article 
2.  for other  periods occurring: 

indicating 

(i)  dur ing pregnancy 

( i i ) during  a  period  of  time 

after  the necessary  period 
following  delivery  .  the 
duration of which  shall  be 
determined 
the 
competent  authority. 

by 

2.  Unchanged 

or 

(b)  leave 

from 

extension  of 
leave 
where 
transfer 
technically 
object ively 
cannot 
required 
substantiated grounds. 

or 
work 
maternity 
a 
such 
not 
and/or 
feasible  or 
reasonably 
duly 

on 

is 

Articles 8 and  9 

Unchanged 

8" 

27.5.92 

Unchanged 

1)  Unchanged 

within  the meaning 
2,  is  dismissed 
period  referred  to 
the  employer  must 

2)  if a worker 
of  Article 
during  the 
in  point  1, 
give 
substantiated  grounds  for  her 
dismissal. 

wr i t ing 

in 

duly 

3)  Unchanged 

Article  10 

Prohlbltion of  dismissal 

In order  to guarantee workers, 
within  the  meaning  of  Article 
2,  the  exercise  of  their 
health  and  safety  protection 
rights  as  recognized  under 
this  Article,  it  shall  be 
provided  that: 

within 

maternity 

1)  Member  States  shall  take 
the necessary measures to 
prohibit  the dismissal  of 
workers, 
the 
meaning  of  Article  2, 
during  the  period  from 
the  beginning  of  their 
pregnancy  to  the  end  of 
the 
ieave 
referred  to  in  Article 
8(1),  save  in exceptional 
cases  not  connected  with 
their  condition which  are 
permitted  under  national 
and/or 
legislation 
practice 
where 
applicable  provided  that 
the  competent  authority 
has given  its consent; 

and, 

2)  if  worker,  within 

the 
meaning  of  Article  2,  is 
dismissed  during  the period 
referred  to  in point  1, the 
employer  must  cite  duly 
substantiated  grounds  for 
her  dismissal; 

3) Member  States  shall  take 
the  necessary  measure  to 
protect  workers, within  the 
meaning  of  Article  2,  from 
the 
of 
consequences 
dismissal  which  is unlawful 
by  virtue of point  1. 

-  9 -

27.5.92 

Article 11 

Employment  Rights 

In order  to guarantee  workers 
within  the  meaning  of  Article 
2  the exercise of  their  health 
and  safety  protection  rights 
as recognized  in this Article, 
it shall  be provided  that: 

Unchanged 

1)  in the cases  referred  to  in 
Articles  5,  6  and  7,  the 
employment  rights  relating 
to the employment  contract, 
including  the  maintenance 
of  a  payment  to,  and/or 
entitlement  to  an  adeauate 
workers 
allowance 
within 
of 
Article  2  must  be  ensured 
in accordance with national 
legislation and/or  national 
pract ice; 

meaning 

f or, 

the 

employment 

(1)  in  the  cases  referred  to  in 
Articles  5,  6  and  7,  the 
employment  rights  relating  to 
the 
contract, 
including  the maintenance  of a 
payment  to,  and/or  entitlement 
to  an  allowance  of  eauivalent 
value  f or,  workers  within  the 
meaning  of  Article  2,  must  be 
in  accordance  with 
ensured 
and/or 
national 
national  practice; 

legislation 

2)  in  the  case  referred  to  in 
Article  8,  the  following 
must  be ensured: 

2)  ) 
) 
a)  ) 

Unchanged 

(a)  the rights connected  with 
the  employment  contract 
of  workers  within  the 
meaning  of  Article  2, 
other  than  those  referred 
to  in point  (b) below; 

(b)  maintenance  of  a  payment 
to, and/or  entitlement  to 
an 
allowance 
f or,  workers  within  the 
meaning of Article 2; 

adeauate 

(b) maintenance  of  a  payment  to, 
an 
and/or 
allowance  of  eauivalent  value 
for, workers within  the meaning 
of Article 2; 

entitlement 

to 

3) The  allowance  referred 
to 
in  point  2(b)  shall 
be 
j t 
deemed 
if 
adeauate 
guarantees  income  at  least 
eauivalent  to  that  which 
the  worker  concerned  would 
receive  in  the  event  of  a 
break  in  her  activities  on 
grounds  connected  with  her 
state of  health. subiect  to 
any ceiling  laid down under 
national  legislation. 

4) Member  States  may  make 
entitlement  to  pay  or  the 
allowance  referred  to  in 
points 
2(b) 
conditional  upon  the worker 
concerned  fulfilling  the 
conditons  of  eligibility 
for  such benefits  laid down 
under  national  legislation. 

and 

1 

provide 

These  conditions  may  under  no 
circumstances 
for 
periods of  previous employment 
in  excess  of  twelve  months 
immediately 
the 
presumed date of  confinement. 

prior 

to 

- 10-

27.5.92. 

3) 

and  the  al lowance 
The  payment 
referred  to 
in  points  1  and 
2(b) shall  be deemed  eauivalent 
if  they  guarantee  income  at 
least 80 per  cent of  the salary 
of  the  worker  concerned  before 
the  leave  in questlon.  subject 
to  any  ceiling  laid  down  under 
national  legislation. 

4)  Unchanged 

Article  11a  (new) 

Complaints procedure 

employees 

Member  States  shall  introduce  into 
their  national  leaal  systems  such 
measures as are necessary  to enable 
consider 
all 
themselves  wronged  by  failure  to 
comply with  the obligations arising 
from  this directive  to pursue  their 
claims  by  ludicial  process  after 
other 
possible 
competent  authorities. 

recourse 

who 

to 

- 11 

27.5.92. 

Article 11b  (new) 

Burden of proof 

the 

from 

period 

In case of a dispute concerning  the 
application of Articles 6. 7 and  10 
of  the  Directive.  and  arisinq 
during 
the 
beoinning  of  the  preonancy  of  a 
worker  within  the meaning of Art. 2 
to  the  end  of  the  maternity  leave 
referred  to  in  Art.8(1).  it  shall 
be  for  the resoondent  to prove  that 
any 
not 
there 
discrimination  or  violatlon  of 
riflhts. 

been 

has 

Articles  12, 13 and  14 

Unchanged 

Annexes  I and II 

Unchanged 

ISSN 0254-1475 

COM(92) 259 final 

DOCUMENTS 

EN 

04 

Catalogue number: CB-CO-92-267-EN-C 

ISBN 92-77-45043-6 

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