CELEX: 51992PC0259
Language: en
Date: 1992-06-10
Title: 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

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)
 ---pagebreak---                                    - 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
 ---pagebreak---                                   - 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.
 ---pagebreak---                                    - 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.
 ---pagebreak---                                        - 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
Whereas    measures      for     the      Whereas     measures     for     the
organization         of         work      organization of work concerning the
concerning the protection of              protection    of   the   health   of
the    health      of     pregnant        pregnant workers, workers who have
workers, workers who have                 recently given birth or workers
recently    given      birth      or      who are breastfeeding would serve
workers who are breastfeeding             no purpose unless accompanied by
would serve no purpose unless             the maintenance of rights Iinked to
accompanied by the maintenance            the employment contract, including
of   rights     I inked     to the        maintenance of a payment and/or
employment contract, including            entitlement to an allowance of
maintenance     of    a     payment       eauivalent value;
and/or    entitlement       to    an
adeauate allowance;
Recital 17
Whereas, moreover, provision              Whereas,     moreover,     provision
concerning     maternity       leave      concerning maternity leave would
would also serve no purpose               also   serve    no purpose    unless
unless   accompanied       by the         accompanied by the maintenance of
maintenance of rights Iinked              rights Iinked to the employment
to the employment contract                contract and/or entitlement to an
and/or    entitlement       to    an      allowance of eauivalent value;
adeauate allowance,
Artlcles 1 and 2                          Unchanged
 ---pagebreak---                                                            9.6.92.
Artïcle 3
            Guidelïnes
    In consuitation with the        1, Unchanged
   Member States and assisted
    by the Advisory Committee
    on Safety, Hygiene and
    Healtn Protcctlon at Work,
    the Commission shali draw
    up    guidelines      on    the
    assessment of the chemical,
    physical     and   biologlcaf
    agents      and     industrial
    processes          cons i dered
    hazardous for the safety or
    heaith of workers within
    the meaning of Article 2.
The guidelines referred to in       The guidelines referred to in the
the f i rst subparagraph sha I I    first subparagraph shall also cover
also     cover    movements     and movements and postures, mentai and
postures, mental and physical       physical fatigue and other types of
fatigue and other types of          physical     and   mental     stress
physical stress connected with      connected wïth the work done by
the work done by workers            workers within the meaning of
within the meaning of Article       Artïcle 2.
2.
2. The      purpose      of     the 2. Unchanged
    guidelines referred to in
    paragraph 1 is to serve as
    a basis for the assessment
    referred     to   in Article
    4(1).
To this end, Member States
shall bring these guidelines
to     the attention       of ali
employers      and   alI     femate
workers         and/or        their
representatives         in      the
 respective Member State.
Articles 4 to 6                     unchanged
 ---pagebreak---                                      - 7 -
                                                                  27.5.92.
Article 7
            Night Work
1. Member States shall take             1. Member States shall take the
the    necessary     measures     to    necessary measures to ensure that
ensure that workers referred            workers referred to in Article 2
to   in Article       2 are      not    are not obliged to perform night
obliged to perform night work           work:
during their pregnancy and for
a period following childbirth           (a) before and after the delivery
which shall be determined by                of a child for a period of at
the      national         author ity        least 16 weeks. of which at
competent     for     safety     and        least eioht must be before the
health. sublect to submission.              presumed date of delivery:
in     accordance       with     the
procedures lald down by the             (b) upon presentation of a medical
Member States. of a medical                 certificate      indicating    the
certificate stating that this               necessity for the health of the
is necessary for the safety or              worker referred to in Article
health      of      the      worker         2. for other periods occurring:
concerned.
                                            (i)   dur ing pregnancy
                                            ( i i ) during a period of time
                                                  after the necessary period
                                                  following delivery . the
                                                  duration of which shall be
                                                  determined       by      the
                                                  competent authority.
2. The measures referred to in          2. Unchanged
paragraph 1 must entail the
possibility,      in     accordance
with     national       legislation
and/or national practice, of:
(a)   transfer to daytime work,
or
(b)   leave     from      work    or
     extension     of     maternity
      leave     where      such    a
      transfer          is       not
      technically             and/or
     object ively feasible or
     cannot              reasonably
      required         on       duly
      substantiated grounds.
Articles 8 and 9                        Unchanged
 ---pagebreak---                                     8"
                                                           27.5.92
Article 10
   Prohlbltion of dismissal
In order to guarantee workers,      Unchanged
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:
 1)   Member States shall take       1) Unchanged
       the necessary measures to
      prohibit the dismissal of
      workers,      within      the
      meaning of Article 2,
      during the period from
       the beginning of their
      pregnancy to the end of
       the     maternity      ieave
       referred to in Article
      8(1), save in exceptional
      cases not connected with
       their condition which are
      permitted under national
       legislation           and/or
      practice      and,      where
      applicable provided that
       the competent authority
       has given its consent;
2) if      worker,    within    the  2)  if a worker within the meaning
   meaning of Article 2, is             of   Article 2,   is dismissed
   dismissed during the period          during the period referred to
    referred to in point 1, the          in point 1, the employer must
   employer     must    cite duly       give      in   wr i t ing   duly
   substantiated grounds for            substantiated grounds for her
    her dismissal;                      dismissal.
3) Member States shall take          3) Unchanged
    the necessary measure to
    protect workers, within the
   meaning of Article 2, from
    the       consequences       of
   dismissal which is unlawful
    by virtue of point 1.
 ---pagebreak---                                   - 9 -
                                                              27.5.92
Article 11
        Employment Rights
In order to guarantee workers        Unchanged
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:
1) in the cases referred to in       (1) in the cases referred to in
   Articles 5, 6 and 7, the              Articles    5, 6    and    7,  the
   employment rights relating            employment rights relating to
   to the employment contract,           the     employment       contract,
    including the maintenance            including the maintenance of a
   of a payment to, and/or               payment to, and/or entitlement
   entitlement to an adeauate            to an allowance of eauivalent
   allowance      f or,   workers        value f or, workers within the
   within     the    meaning   of        meaning of Article 2, must be
   Article 2 must be ensured             ensured    in   accordance    with
    in accordance with national          national     legislation    and/or
    legislation and/or national          national practice;
   pract ice;
2) in the case referred to in        2)  )
   Article 8, the following              )    Unchanged
   must be ensured:                  a)  )
(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       (b) maintenance of a payment to,
      to, and/or entitlement to          and/or    entitlement      to   an
      an    adeauate    allowance        allowance of eauivalent value
      f or, workers within the           for, workers within the meaning
      meaning of Article 2;              of Article 2;
 ---pagebreak---                                    - 10-
                                                               27.5.92.
3) The allowance referred to           3) The payment and the al lowance
   in point      2(b) shall     be        referred to in points 1 and
   deemed    adeauate      if  jt         2(b) shall be deemed eauivalent
   guarantees income at least             if they guarantee income at
   eauivalent to that which               least 80 per cent of the salary
   the worker concerned would             of the worker concerned before
   receive in the event of a              the leave in questlon. subject
   break in her activities on             to any ceiling laid down under
   grounds connected with her             national legislation.
   state of health. subiect to
   any ceiling laid down under
   national legislation.
4) Member   States      may   make    4)  Unchanged
   entitlement to pay or the
   allowance referred to in
   points      1      and     2(b)
   conditional upon the worker
   concerned     fulfilling    the
   conditons     of    eligibility
   for such benefits laid down
   under national legislation.
These conditions may under no
circumstances       provide    for
periods of previous employment
in excess of twelve months
immediately     prior     to   the
presumed date of confinement.
                                               Article 11a (new)
                                      Complaints procedure
                                      Member States shall introduce into
                                      their national leaal systems such
                                      measures as are necessary to enable
                                      all    employees      who    consider
                                      themselves wronged by failure to
                                      comply with the obligations arising
                                      from this directive to pursue their
                                      claims by ludicial process after
                                      possible     recourse     to    other
                                      competent authorities.
 ---pagebreak---                        - 11
                                                   27.5.92.
                                    Article 11b (new)
                          Burden of proof
                           In case of a dispute concerning the
                          application of Articles 6. 7 and 10
                          of    the  Directive.   and    arisinq
                          during    the    period    from    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
                          there     has     not     been     any
                          discrimination    or   violatlon    of
                          riflhts.
Articles 12, 13 and 14    Unchanged
Annexes I and II          Unchanged
 ---pagebreak---  ---pagebreak---                                                                      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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