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Statement for the Parliament's Employment and Equality Committee on the family leave reform (HE 129/2021 vp.) (TAS 509/2021, issued on 14 October 2021)

The Ombudsman for Equality was heard by the Parliament's Employment and Equality Committee on the family leave reform on 15 October 2021.

The Parliament's Employment and Equality Committee requested a statement from the Ombudsman for Equality on the Government Proposal to the Parliament for Acts Amending the Health Insurance Act, the Employment Contracts Act and the Act on Early Childhood Education and Care as well as related Acts (HE 129/2021 vp., later referred to as the family leave reform).
According to the government proposal, the aim of the proposal is to divide family leave and care responsibilities more equally between both parents. The aim is also to improve the equal treatment of different types of families in the parental allowance system and the flexibility of the system, taking the families’ different needs into account in the use of leave and allowances. 
The goals set for the family leave reform are to be supported. Above all, the more equal division of the care responsibilities may have a positive effect on equality in working life; it improves the opportunities of women in particular to participate in working life and balance work and family life. 

In the view of the Ombudsman for Equality, however, the proposal includes some suggestions that are problematic with regard to gender equality.

Family leave with regard to the prohibition of discrimination

Discrimination based on pregnancy, giving birth, parenthood or gender is prohibited by law. When examining prohibited discrimination, it is important to note if the individuals compared in the situation in question are in a comparable situation, in which case they should in principle be treated the same way. For instance, according to the valid legislation, it has been possible to pay a maternity allowance for a period longer than a paternity allowance period. From the perspective of the prohibitions of discrimination of the Act on Equality between Women and Men, this has been possible because the grounds for the payment of maternity and paternity allowances have been different. The opportunity to stay away from work, thereby ensuring the health of the parent and child and the care of the child at home, has been used as the grounds for a maternity allowance. The paternity allowance has been used to encourage fathers to participate in the care of their child and establish a good relationship with their child.  (e.g. HE 50/2004, p. 9). In its statement PeVL 38/2006 vp., the Constitutional Law Committee has also noted that the provision on equality in section 6 of the Constitution of Finland does not create obstacles to the different treatment of allowances that are determined based on different grounds. 

In contrast, the positions of the parental allowance and the maternity and paternity allowances have been considered different. The purpose of the parental allowance is to ensure the care of the child at home. The parents are seen as being in a comparable position with regard to parental leave, and they must be treated in the same way, which is why a parental allowance, among other things, must be paid equally to the mother or father that takes care of the child.

The government proposal changes the structure of family leave so that, in the future, in addition to the parental allowance there would only be a pregnancy allowance intended for the parent who is pregnant and gives birth. The parental allowance would be paid to all parents regardless of their gender, and therefore parents of a different gender would be in a comparable position during the benefit period. As a result, the mother and the father must be treated in the same way as beneficiaries of the benefits related to parental leave. 

Proposals concerning the pregnancy allowance

Purpose of the pregnancy allowance

The proposal suggests that a pregnancy allowance to replace the maternity allowance should be provided for in chapter 9, sections 1–2 of the Health Insurance Act. According to the provision-specific grounds, the purpose of the pregnancy allowance would be to compensate the income of pregnant persons due to the absence from work required by the final stage of the pregnancy (HE 129/2021 vp., p. 121). The current payment of a maternity allowance has been justified by stating that its objective is “to grant the mother an opportunity to be absent from work, thereby ensuring her own health and that of her child, and to ensure the care of the child at home.”  This perspective of maternity protection is completely absent from the family leave proposal. 

In the view of the Ombudsman for Equality, a reference to the pregnancy and maternity protection should still have been included in the grounds of the proposals on the pregnancy allowance. The need to protect the health of the parent who is pregnant and gives birth and the recovery of said parent from pregnancy and birth has not disappeared, and therefore it would be important to state this clearly in legislation. This would also be important with regard to the legal status of mothers.

Duration of the pregnancy allowance period

According to the proposal, the parent who is pregnant and gives birth would always have the right to receive a pregnancy and parental allowance for at least 105 weekdays. This would not require custodianship or care of the child. The parental allowance period and parental leave have traditionally been linked to the care of the child. In the view of the Ombudsman for Equality, the parental allowance period cannot replace the time to which the parent who is pregnant and gives birth is entitled for the reasons of pregnancy and maternity protection behind the current maternity leave, for instance. The Ombudsman for Equality notes that in general, the mother and the father are not otherwise in a comparable position with regard to the use of the parental allowance, if a part of the mother’s parental allowance days would in most cases be spent on recovering from the pregnancy and birth. According to the legal provisions on discrimination, this is problematic.

In the view of the Ombudsman for Equality, recovery from pregnancy and birth as well as starting to breastfeed the child require the payment of a pregnancy allowance and extending the pregnancy allowance period to cover the time after birth. It would be important to extend the pregnancy allowance period from its suggested length so that the goal would be the paid maternity leave of at least six weeks after birth required by Article 8 of the European Social Charter and its monitoring practice, for instance. The ILO Maternity Protection Convention also includes a mandatory leave of at least six weeks after birth. 

The Maternity Protection Convention also provides for breastfeeding breaks. In the view of the Ombudsman for Equality, their implementation in Finland can also be investigated, if parents start to share the parental leave more equally than at the moment. 

Paid maternity and paternity leave in collective agreements 

The government proposal has not examined how the reform may potentially be reflected on the paid maternity and paternity leave stipulated by the collective agreements, thereby affecting pay equality or the financial position of women and men. 

Negotiating collective agreements and their content is a part of the contracting parties’ autonomy regarding agreements. In the opinion of the Ombudsman for Equality, however, the family leave reform includes a risk that as a result of the reform, the paid maternity leave of mothers with its current length would be either removed from the collective agreements or significantly shortened. If this should happen, the financial position of working mothers would deteriorate compared to their current one, and the change would be extremely dramatic. The increased allowance (90% of the three hundredth part of the annual income) received during the pregnancy period and parental leave period (a total of 56 weekdays) would not replace this. It is likely that this would also affect the average income that describes the wage gap between women and men. At the moment, the average earnings of women are approximately 84% of men’s average earnings.