Fellowship | Human Rights | In-depth | Gender Equality

Biased legislation favors tradional gender roles

By - 10.12.2018

A look into policies on maternity, paternity and parental leave.

Teo’s birth was undoubtedly one of the greatest blessings the Smolica family ever experienced. One of the happiest and most blessed was Teo’s dad, Pajtim Smolica, who experienced the feeling of being a father for the first time. He stopped working for a week and wanted to stay close to his son all the time.

Teo was born on March 22, 2017. At that time, Nora, Teo’s mother and Pajtim’s spouse, took the maternity leave that the law entitled her to. Pajtim though, had to come to an arrangement with his employer, GEM-K, a humanitarian organization that deals with activities for children.

“Usually, during the summer season, we organize summer camps, but that year, after Teo was born, we didn’t organize summer camps but only winter camps, which gave me more free time during the summer to stay near my family,” Pajtim says. During that time, he took care of Teo by changing his diapers, preparing the formula milk for him, feeding and washing him whenever he was next to him. It made him feel extremely happy.

Pajtim and Nora took co-responsibility for raising their child. “We had a morning routine. We took it in turns, so that at least one would be more relaxed during the day, because in the beginning Teo woke very early in the morning, no less than 5:30 in the morning,” Nora said.

Pajtim believes that every father needs to be close to his child from the moment they are born, especially those who become a father for the first time. He says that in the studies he has read, fathers play a very important role in the mental health of their children much later in life. “Fathers have a unique style of interaction with their children, and people who say that they had a good relationship with their father during childhood were found to be better at handling stress,” Pajtim says.

Traditional gender roles are reinforced by the current Law on Labor.

The important role that fathers have in raising their children is argued by many, but traditional gender roles often deprive men of the opportunity to participate actively in providing care to their children. Within these roles, housework and caring for children are mainly seen as women’s work.

These traditional roles are reinforced by the current Law on Labor. Article 50 of this Law, which includes ‘the rights of the child’s father’ gives fathers limited rights. According to the Article, the child’s father has the right to only two days of paid paternity leave after a child is born or adopted, and two weeks of unpaid leave after a child is born or adopted until the child has reached the age of three years.

Maternity leave on the other hand entitles women to up to a 12-month break: the employer pays for the first six months of maternity leave with the compensation of seventy percent of basic salary, while the Government of Kosovo pays the following three months with 50 percent compensation of the average salary in Kosovo.

Women also have the right to extend maternity leave for another three months without payment. The father of the child may assume the rights of the mother if the mother dies or abandons the child before the end of the maternity leave.

While Pajtim Smolica was able to arrange time away from his job to spend with his child, not all fathers have that option. Photo: Dardan Hoti.

The laws as they stand do not allow fathers to be heavily involved in childcare. The ‘privilege’ that Pajtim had, to take time away from the office, is not an option for every father in Kosovo. He says that the state and lawmakers should see the importance of paternal leave after the birth of the child and believes in longer parental leave for fathers, as well as exercising the leave.

But besides excluding fathers from enjoying their childcare rights, evidence suggests that the current provisions on maternity leave deepen the gap in women’s labor market participation.

In Kosovo, the total labor force participation is estimated by the Kosovo Agency of Statistics (KAS) at 40.4 percent, a level that is lower than most countries in the region. Men’s labor force participation in Kosovo is over 63 percent, while women’s is 17.4 percent, meaning that over 80 percent of women in Kosovo are neither employed nor looking for work. Women’s labor force participation in Kosovo is the lowest in the region.

An analysis made by Kosovo Women’s Network (KWN) suggests that current legal provisions on maternity leave provide a basis for unequal treatment of women and men at work. According to the report, employers consider it a higher cost to hire women, especially women of childbearing age; of the 937 women surveyed who had applied for jobs in the last five years, 62.7 percent said employers have asked them about their marital status and plans to have children.

Model for equal opportunites

In 2013, the Ministry of Labor and Social Welfare (MLSW) began to make amendments to the Law on Labor, including provisions on maternity leave, with the stated intention to increase women’s participation in the labor market.

MLSW was partly influenced by a 2012 report, made by the American Chamber of Commerce in Kosovo, which concluded that the article on maternity leave is a burden for Kosovo businesses and as such is causing discrimination against women when they apply for new jobs.

Meanwhile, during the discussions on the new draft, the Democracy for Development Institute (D4D), along with other organizations that deal with women’s rights issues and economic policy, are advocating for the government to push forward a model of parental leave to be part of the provisions on postnatal leave. This model would give equal opportunities for fathers and mothers to engage in child care.

One of the reasons for this advocacy was D4D’s 2017 research, which suggested the willingness of Kosovar men and women to apply parental leave. In a survey of 1,070 interviewees, 41.8 percent of men and 45.8 percent of women would consider sharing their leave with their partners. Support was even higher among younger people, those between 18-44 years of age.

Ajete Kërqeli, project manager at D4D, says their proposals are based on minimum standards under the EU’s Parental Leave Directive.

“This model is a family permit scheme where the mother is entitled to eight months of leave (as maternity leave and parental leave) and five months for the father (as paternity leave and parental leave),” Kërqeli explains.

European Union countries have taken different measures to encourage fathers to use parental leave. One of the ways is by offering a reward.

Within the scheme proposed, mothers would be entitled to four months of maternity leave and fathers one month of paternity leave immediately after the child is born, paid by the employer at 70 percent of their salary.

Another four months of parental leave are then available to both the mother and the father until the child reaches three years old. Two months of this leave is foreseen to be paid by the government at 50 percent of the average salary of Kosovo, while the other two months would be unpaid.

“Parents can decide when they want to take the leave, depending on their circumstances and with prior notice to the employer,” explains Kërqeli.

The EU directive coordinates work and family life and promotes equal opportunities for men and women in the labor market. It sets minimum conditions for parental leave for male and female workers, as well as employment-related protections.

Meanwhile, European Union countries have taken different measures to encourage fathers to use parental leave. One of the ways is by offering a reward. Among the many countries offering such a reward is Germany, which extends paid leave to two months if fathers take at least two months of parental leave, while in Sweden, parents receive 480 days of child leave, and 420 of these days are paid at a rate of 80 percent of their salary.

The 2017 “State of the World Fathers – Time for Action” survey, emphasizes the importance of sharing housework and childcare, which contributes to the boys acceptance of the concept of gender equality, while girls gain the sense of autonomy and empowerment, creating a positive cycle of care and equality.

Professor of Psychology Fitim Uka believes that the emotional warmth and support fathers can provide means that more paternity and parental leave for men should definitely be considered. Photo courtesy of Fitim Uka.

Psychologist Fitim Uka, a professor at the Department of Psychology at the University of Prishtina and a father of a two-year-old boy, says that fathers play an important role in the mental health of children.

“I see some trying to say that the child has more need for the mother, and that the leave for fathers is not justified,” he said. “Fathers, as well as a mothers, can take care of a newborn baby and the emotional warmth that they give, the love and care for the baby make the father’s leave somewhat necessary and completely reasonable.”

He says that the presence of fathers at home after the birth of the baby also emotionally supports the mother and that current legal provisions for paternity and parental leave are inadequate.

Government ignoring recommendations

In June 2018, the Government of Kosovo adopted the Work Settlement Document Framework for Employment Relations, which precedes the new Law on Labor. It is expected to soon be sent to the Government and then to the Kosovo Assembly for approval. New provisions for parental leave have been in public discussion during October this year.

The Concept Document states that the new model of maternity, paternity and parental leave is made under the EU Directive 2010/18/EC. However, the new draft law and the current law do not differ from each other much.

Regarding maternity leave, the main differences are in the form of payment. Payment for the first six months by the employer is reduced to three months with the same compensation of 70 percent of the basic salary.

However, under the new draft law, the government takes the burden of paying the other six months of maternity leave with payments being made at 50 percent of the average salary in Kosovo. The same as with the current law, the employed woman has the right to extend her maternity leave for another three months without payment.

As for paternity leave, the government has foreseen ten days of paid leave after the birth or adoption of the child — increasing the number by only eight days from the current law. Also, as with the current law, the father has the right to take two extra months unpaid leave until the child reaches the age of two.

The main change in the new draft is the inclusion of parental leave, where the government has foreseen leave of at least four months that can be taken simultaneously by both parents until the child has reached two years of age.

The current Minister of Labor and Social Welfare, Skender Reçica, says that all the proposals were made after the necessary analysis before drafting the Concept Document, both in terms of the new Law on Labor.

Reçica in a reply to K2.0 via email, says that the changes are aimed at changing the mentality of men. “Parental leave is not mandatory,” Reçica says. “But this leave is aimed at raising awareness that men also have equal responsibilities to children, and all those who feel they should care for their children are given four months of parental leave until the child reaches two years of age.”

Project Manager at the Democracy for Development Institute, Ajete Kërqeli believes that the government’s new proposals still place the burden of childcare on the mother. Photo courtesy of Democracy for Development.

For Kërqeli, this shows that the burden of child care is being left to the mother again. “The format proposed by the government does not help change the gender roles within the family, because it continues to maintain the idea that only the mother has to care for the child, by giving the mother 12 months of maternity leave and then four months of parental leave,” she says.

Ombudsperson, Hilmi Jashari told K2.0 that they will react if the new law contains discriminatory elements. The Institution of the Ombudsperson, according to the Constitution of Kosovo, has the authority to evaluate the compliance of the Law with the Constitution, but only after the law passes to the Parliamentary Committee and is approved in the Kosovo Assembly.

Jashari reveals his dissatisfaction with another defect that Kosovo’s legal system has which is not helping these situations. According to Jashari, the creation of laws is being done mainly by governmental actors and certain ministries without any proper expertise in drafting legislation.

“This is an obstacle, as usually in drafting legislation, there should be experts who have the drafting of legislation in proportion,” Jashari says. “We have made an analysis of the adoption of laws and we have noticed two major defects in the system.”

“65 percent of all legislation passed in 2015 has been amended,” he continues. “In the most extreme cases we have seen laws passed in the Assembly and after a week it has gone into amendment. This seriously threatens the principle of legal certainty of the country.”

Discrimination of maternity leave does not change with the new law

The right to maternity leave has also been used by the Information Officer at the Supreme Court, Antigona Uka-Lutfiu, the mother of two girls, five-year-old Lura and two-year-old Lea. For her, the main difficulties in raising two children were financial, because the Kosovar state, as she says, “has not created any benefits for new mothers.”

Financially unable to use the last three months of unpaid of maternity leave, Antigona’s husband, Ekrem, who works as a spokesman for the Prosecutorial Council of Kosovo, took a month-long vacation to take care of their second nine-month-old daughter, Lea, who at 10 months had to be sent to kindergarten.

“If instead the last three months of [maternity] leave would [be parental leave for the father] with a percentage of the payment, it would be a priority for the family, and especially for the mother, to return to work,” Uka-Lutfiu says. “But in Kosovo, even with the current proposal for changes, there seems to be a tendency for the laws to fit the strong ones, businesses, and not the parents and children.”

Antigona Uka-Lutfi believes that the proposed reduction of paid maternity leave from one’s employer from six to three months is unacceptable. Photo courtesy of Antigona Uka-Lutfiu.

For her, it is unacceptable for maternity leave, which currently is paid 70 percent in the first six months, to be reduced to three months in the name of job protection and burden-reduction for businesses.

Women’s rights activists have continued to emphasize that the current law has discouraged businesses to engage women in the labor market. The same is expected to happen with the changes proposed by the Government, which according to Dita Dobranja, a researcher at Riinvest College and also one of the participants in the discussions on this law, are cosmetic.

According to her, the government has not even aligned its proposals with EU directives. She added that they are not considering what the purpose of these changes for maternity leave and parental leave is. Dobranja says that Riinvest, along with other organizations, have tried to provide evidence of how discriminating maternity leave is for women as well as for fathers.

“At Riinvest we have done research from the private sector and we know that they try to minimize their costs,” Dobranja says. “When we completed a questionnaire last year with women who are employed and when asked about maternity leave and whether or not the workers take the leave, many have said no because the employer does not provide them with it. Because it’s not just the salary as a cost; it’s the training and the replacement that you have to pay. The government hasn’t taken all this into account to create a balance.”

Even Iliriana Banjska from Kosovo Women’s Network (KWN) says these changes are likely to strengthen gender discrimination even further. “With the new proposals for provisions relating to maternity, paternity and parental leave, women will have the opportunity to take more leave in the case of childbirth, which is likely to reinforce gender discrimination in employment and work, and keep women out of the labor market longer,” she says.

“In the civil service, there is no risk of losing your job, but you can lose chances to advance, which is the price that every mother does not hesitate to pay on behalf of taking care of their child.”

Information Officer at the Supreme Court, Antigona Uka-Lutfiu.

Uka–Lutfiu has a similar complaint. Although as a civil servant, she isn’t prone to losing her job, she says she can lose chances for advancement. “Twelve month leave is not mandatory, each mother chooses how long to stay on vacation, but no doubt, if this leave could be combined with the other parent, it would be a great advantage for the mother and the continuation of her career,” she says. “In the civil service, there is no risk of losing your job, but you can lose chances to advance, which is the price that every mother does not hesitate to pay on behalf of taking care of their child.”

However, Minister Reçica insists on the idea that the proposed changes are aimed at empowering women employed in the labor market. He does not consider that maternity leave will have an impact on the inactivity of women in the labour market.

“New policies have been drafted according to international standards and socio-economic circumstances of the country,” he said. “In addition, in the Law on Maternity we plan on treating unemployed mothers, compensating them with a certain amount of minimum wage, which is something new in terms of maternity leave.”

As a prerequisite for receiving this state-funded allowance, Reçica says it is proposed that unemployed women should be registered 6 months in advance at Employment Offices as jobseekers.

Dobranja says that, compensation of women who are not employed during maternity leave should not be foreseen with the same legislation as for employed women, because then it becomes difficult to make distinctions about which scheme has what impact on the state budget. If the government foresees such compensation, it is extremely important to make sure that this compensation does not serve as a reason for women to leave the labor market. “Without proper analysis, proposing such policies is problematic,” she adds.

The cost of the burden

The government, on the other hand, has not made any proposals nor has made it public how much the proposals would cost the budget of the state.

However, some civil society organizations have made calculations on how much the state’s businesses model is costing them, as well as the one proposed by the government. Kërqeli says that with their model, the number of families that will benefit is significantly higher than the number of families benefiting from the state budget scheme.

According to the civil society proposal, maternity, paternity and parental leave would be regulated by the Administrative Instruction, which will be initially approved as a transitional provision until the Health Insurance Fund is functional. When this fund would start implementing, employers would be relieved of medical coverage for their maternity workers, both for mothers and fathers.

Kërqeli explains how the state would take the burden of paying eight months of parental leave, equally divided between parents, with 50 percent of the average salary in Kosovo; this would divide the financial burden between private and public employers and would demonstrate willingness to contribute to gender equality.

Since such a policy is intended to address discrimination against women at work, it is important to design it in such a way as to be acceptable to all actors affected by this change. Also, civil society highlights that it is important for the state to demonstrate its commitment to combating gender discrimination in the labor market, and the best way to do it, is to approve and implement policies that aim at this.K

Editing by Leurina Mehmeti.
Additional editing: Dafina Halili, Jack Robinson.

Feature image: Dardan Hoti.

This article was written as part of K2.0’s Human Rights Journalism Fellowship, 2018.

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