Working mothers and maternity leave

Working mothers are increasingly a reality in our society. Many women choose to continue their professional engagements after becoming mothers, out of necessity or ambition. Whatever the inspiration, a woman’s decision to perform both roles takes a physical and emotional toll on her and entails consequences for child rearing, particularly given the gendered division of familial responsibility in our society.

The state is under a constitutional obligation, enshrined in Article 37 of the Constitution, to facilitate women in the performance of their professional responsibilities by providing maternity benefits. The provision of maternity leave is one such instrument of facilitation. It allows women the time to prepare for and recuperate from the laborious task of bringing a life into this world, to nurture and bond with their new born, and to set in place systems of care management for their child once they return to work.

The legal framework governing maternity leave in Pakistan is largely dated, and suffers from lacunae, particularly with regard to its ambit of application. The laws regulating provision of maternity leave in the public and private sectors are distinct. The Civil Servants Act of 1973 and the Revised Punjab Leave Rules, 1981 mandate the provision of 90 days full-paid maternity leave to female civil servants (other than those employed on contract or those who qualify under the law as worker/workmen), for their first three children. Through a commendable amendment to the Leave Rules in 2012, the Punjab government also entitled male civil servants a week-long paternity leave for their first two children.

In the private sector, the Punjab Maternity Benefits Ordinance, 1958 mandates that “commercial and industrial establishments” provide their female employees 12 weeks of full-paid maternity leave, without restriction on the number of times such leave can be availed during the tenure of employment. Pursuant to the provisions of the 1958 Ordinance read with the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, which defines commercial and industrial establishments, women working in mines, factories or workshops where a manufacturing process is undertaken, in commercial agencies, joint stock companies, insurance companies, banks, hotels and cinema houses, are entitled to 12 weeks full-paid maternity leave.

Although the 1968 Ordinance (and thereby the 1958 Ordinance) is applicable to a wide range of organisations, it possibly leaves unregulated educational institutions, hospitals and non-profit organisations. The definition of commercial establishments, provided in the 1968 Ordinance, does not categorically include such organisations within its ambit, but could be interpreted as doing so. Judicial precedent has also failed to add clarity on this point. Certain judicial authorities hold that educational institutions do not qualify as commercial establishments. Others reserve this conclusion only for those educational institutions run for charitable purposes. Similar ambiguity exists in the law with regard to the status of hospitals as commercial establishments, and the subsequent applicability of the 1958 and 1968 ordinances to them. While charitable organisations ostensibly fall beyond the scope of the ordinances, it is unclear whether non-profit organisations, not run for charitable purposes, do so as well. In this state of ambiguity, such private institutions, may lay down less favourable provisions (or none at all) for maternity leave. This uncertainty and lacuna in the law needs to be corrected.

It is undeniable that in today’s world fathers must (and do) play an important role in childrearing and that a strong support structure within the family, buttressed by the sharing of familial responsibility by the father, facilitates the return of working mothers to the workforce. In recognition of this reality, the Punjab government made the above-mentioned amendment to the Leave Rules, 1981 in 2012. (It must be pointed out that the duration of paternity leave allowed is far from sufficient). The law does not mandate the provision of paternity leave for male employees in the private sector, where the need for the institutionalisation of such support structure is no different. A bill proposing paternity leave of three months, applicable across sectors, was introduced in the Indian parliament in 2017. Legislative approval of the bill would be a great landmark and a precedent for us to follow.

The Indian parliament has already set precedent on this subject by amending the Maternity Benefit Act of 1961 to increase full-paid maternity leave from 12 to 26 weeks (six months). Some countries, for instance Australia and Sweden, have set the minimum duration of full-paid maternity leave much higher, at over 12 months. Admittedly it would be difficult to determine what exactly the right duration of maternity leave ought to be. However, as familial structures increasingly become more nuclear, our state ought to consider and assess the sufficiency of the 12-week maternity leave currently permitted under our law.

It is the state’s constitutional responsibility to facilitate expectant and recent mothers, in their intersecting commitment to raising families and continued professional engagement and development. The state must modernise and rationalise the current regulatory scheme of maternity leave so as to fulfill its aforementioned responsibility. Such is the mandate not only of Article 37 of the Constitution, but also Articles 34 and 35, which obligate the state to protect the family, mother and child and ensure the full participation of women in all spheres of national life.

Published in The Express Tribune, January 30^th, 2018.

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