Artigo 33.o - Vida familiar e vida profissional
1. É assegurada a protecção da família nos planos jurídico, económico e social. 2. A fim de poderem conciliar a vida familiar e a vida profissional, todas as pessoas têm direito a protecção contra o despedimento por motivos ligados à maternidade, bem como a uma licença por maternidade paga e a uma licença parental pelo nascimento ou adopção de um filho.
O n.o 1 do artigo 33.o baseia-se no artigo 16.o da Carta Social Europeia.
O n.o 2 inspira-se na Directiva 92/85/CEE do Conselho, relativa à implementação de medidas destinadas a promover a melhoria da segurança e da saúde das trabalhadoras grávidas, puérperas ou lactantes no trabalho, e na Directiva 96/34/CE, relativa ao Acordo-Quadro sobre a licença parental celebrado pela UNICE, pelo CEEP e pela CES. Baseia-se ainda no artigo 8.o (protecção da maternidade) da Carta Social Europeia, com inspiração no artigo 27.o (direito dos trabalhadores com responsabilidades familiares à igualdade de oportunidades e de tratamento) da Carta Social revista. O termo `maternidade` abrange o período compreendido entre a concepção e o aleitamento.
Article 29 (1) Women, adolescents, and persons with health problems have the right to increased protection of their health at work and to special work conditions. (2) Adolescents and persons with health problems have the right to special protection in labour relations and to assistance in vocational training. (3) Detailed provisions shall be set by law. Article 32 (1) Parenthood and the family are under the protection of the law. Special protection is guaranteed to children and adolescents. (2) Pregnant women are guaranteed special care, protection in labor relations, and suitable labor conditions.
Sections 195-8 deal with all types of parental leave. Sections 239-42 deal with specialised conditions for women at work.
Článek 29 (1) Ženy, mladiství a osoby zdravotně postižené mají právo na zvýšenou ochranu zdraví při práci a na zvláštní pracovní podmínky. (2) Mladiství a osoby zdravotně postižené mají právo na zvláštní ochranu v pracovních vztazích a na pomoc při přípravě k povolání. (3) Podrobnosti stanoví zákon. Článek 32 (1) Rodičovství a rodina jsou pod ochranou zákona. Zvláštní ochrana dětí a mladistvých je zaručena. (2) Ženě v těhotenství je zaručena zvláštní péče, ochrana v pracovních vztazích a odpovídající pracovní podmínky.
Artículo 391. Los poderes públicos aseguran la protección social, económica y jurídica de la familia.(…)
Article 39 The public authorities ensure social, economic and legal protection of the family. (...)
Article 53 Marriage is based on the equality of spouses. Marriages shall be solemnised before an empowered state authority.Marriage and the legal relations within it and the family, as well as those within an extramarital union, shall be regulated by law.The state shall protect the family, motherhood, fatherhood, children and young people and shall create the necessary conditions for such protection.
Article 41 (1) Marriage is a unique bond between a man and a woman. The Slovak Republic broadly protects and promotes its good. Marriage parenthood and the family are under the protection of the law. The special protection of children and minors is guaranteed.(2) Special care, protection in labor relations, and adequate working conditions are guaranteed to a woman during the period of pregnancy (...) (5) Parents caring for children are entitled to assistance from the state. (6) Details concerning rights under paragraphs 1 to 5 shall be laid down by law.
Čl. 41 (1) Manželstvo je jedinečný zväzok medzi mužom a ženou. Slovenská republika manželstvo všestranne chráni a napomáha jeho dobru. Manželstvo, rodičovstvo a rodina sú pod ochranou zákona. Zaručuje sa osobitná ochrana detí a mladistvých. (2) Žene v tehotenstve sa zaručuje osobitná starostlivosť, ochrana v pracovných vzťahoch a zodpovedajúce pracovné podmienky. (5) Rodičia, ktorí sa starajú o deti, majú právo na pomoc štátu. (6) Podrobnosti o právach podľa odsekov 1 až 5 ustanoví zákon.
Artigo 59.º (Direitos dos trabalhadores) 1. Todos os trabalhadores, sem distinção de idade, sexo, raça, cidadania, território de origem, religião, convicções políticas ou ideológicas, têm direito: b) A organização do trabalho em condições socialmente dignificantes, de forma a facultar a realização pessoal e a permitir a conciliação da actividade profissional com a vida familiar. Artigo 67.º (Família) 1. A família, como elemento fundamental da sociedade, tem direito à protecção da sociedade e do Estado e à efectivação de todas as condições que permitam a realização pessoal dos seus membros. 2. Incumbe, designadamente, ao Estado para protecção da família: a) Promover a independência social e económica dos agregados familiares; b) Promover a criação e garantir o acesso a uma rede nacional de creches e de outros equipamentos sociais de apoio à família, bem como uma política de terceira idade; c) Cooperar com os pais na educação dos filhos; d) Garantir, no respeito da liberdade individual, o direito ao planeamento familiar, promovendo a informação e o acesso aos métodos e aos meios que o assegurem, e organizar as estruturas jurídicas e técnicas que permitam o exercício de uma maternidade e paternidade conscientes; e) Regulamentar a procriação assistida, em termos que salvaguardem a dignidade da pessoa humana; f) Regular os impostos e os benefícios sociais, de harmonia com os encargos familiares; g) Definir, ouvidas as associações representativas das famílias, e executar uma política de família com carácter global e integrado. h) Promover, através da concertação das várias políticas sectoriais, a conciliação da actividade profissional com a vida familiar. Artigo 68.º (Paternidade e maternidade) 1. Os pais e as mães têm direito à protecção da sociedade e do Estado na realização da sua insubstituível acção em relação aos filhos, nomeadamente quanto à sua educação, com garantia de realização profissional e de participação na vida cívica do país. 2. A maternidade e a paternidade constituem valores sociais eminentes. 3. As mulheres têm direito a especial protecção durante a gravidez e após o parto, tendo as mulheres trabalhadoras ainda direito a dispensa do trabalho por período adequado, sem perda da retribuição ou de quaisquer regalias. 4. A lei regula a atribuição às mães e aos pais de direitos de dispensa de trabalho por período adequado, de acordo com os interesses da criança e as necessidades do agregado familiar.
Article 59 (Workers’ rights) (1) Regardless of age, sex, race, citizenship, place of origin, religion and political and ideological convictions, every worker shall possess the right: (b) That work be organised in keeping with social dignity and in such a way as to provide personal fulfilment and to make it possible to reconcile professional and family life. Article 67 (Family) (1). As a fundamental element in society, the family shall possess the right to protection by society and the state and to the effective implementation of all the conditions needed to enable family members to achieve personal fulfilment. (2) In order to protect the family, the state shall particularly be charged with: (a) Promoting the social and economic independence of family units; (b) Promoting the creation of, and guaranteeing access to, a national network of crèches and other social facilities designed to support the family, together with a policy for the elderly; (c) Cooperating with parents in relation to their children’s education; (d) With respect for individual freedom, guaranteeing the right to family planning by promoting the information and access to the methods and means required therefore, and organising such legal and technical arrangements as are needed for motherhood and fatherhood to be consciously planned; (e) Regulating assisted conception in such a way as to safeguard the dignity of the human person; (f) Regulating taxes and social benefits in line with family costs; (g) After first consulting the associations that represent the family, drawing up and implementing a global and integrated family policy; (h) By concerting the various sectoral policies, promoting the reconciliation of professional and family life. Article 68 (Fatherhood and motherhood) (1) In performing their irreplaceable role in relation to their children, particularly as regards the children’s education, fathers and mothers shall possess the right to protection by society and the state, together with the guarantee of their own professional fulfilment and participation in civic life. (2) Motherhood and fatherhood shall constitute eminent social values. (3) Women shall possess the right to special protection during pregnancy and following childbirth, and female workers shall also possess the right to an adequate period of leave from work without loss of remuneration or any privileges. (4) The law shall regulate the grant to mothers and fathers of an adequate period of leave from work, in accordance with the interests of the child and the needs of the family unit.
Article 18Marriage, being a union of a man and a woman, as well as the family, motherhood and parenthood, shall be placed under the protection and care of the Republic of Poland.Article 331. Men and women shall have equal rights in family, political, social and economic life in the Republic of Poland.2. Men and women shall have equal rights, in particular, regarding education, employment and promotion, and shall have the right to equal compensation for work of similar value, to social security, to hold offices, and to receive public honours and decorations.Article 711. The State, in its social and economic policy, shall take into account the good of the family. Families, finding themselves in difficult material and social circumstances - particularly those with many children or a single parent - shall have the right to special assistance from public authorities.2. A mother, before and after birth, shall have the right to special assistance from public authorities, to the extent specified by statute.
Article 18 Marriage, being a union of a man and a woman, as well as the family, motherhood and parenthood, shall be placed under the protection and care of the Republic of Poland.Article 33.1. Men and women shall have equal rights in family, political, social and economic life in the Republic of Poland.2. Men and women shall have equal rights, in particular, regarding education, employment and promotion, and shall have the right to equal compensation for work of similar value, to social security, to hold offices, and to receive public honours and decorations.Article 71.1. The State, in its social and economic policy, shall take into account the good of the family. Families, finding themselves in difficult material and social circumstances - particularly those with many children or a single parent - shall have the right to special assistance from public authorities.2. A mother, before and after birth, shall have the right to special assistance from public authorities, to the extent specified by statute.
Art. 18 Małżeństwo jako związek kobiety i mężczyzny, rodzina, macierzyństwo i rodzicielstwo znajdują się pod ochroną i opieką Rzeczypospolitej Polskiej.Art. 33 Kobieta i mężczyzna w Rzeczypospolitej Polskiej mają równe prawa w życiu rodzinnym, politycznym, społecznym i gospodarczym.Kobieta i mężczyzna mają w szczególności równe prawo do kształcenia, zatrudnienia i awansów, do jednakowego wynagradzania za pracę jednakowej wartości, do zabezpieczenia społecznego oraz do zajmowania stanowisk, pełnienia funkcji oraz uzyskiwania godności publicznych i odznaczeń.Art. 71.1 Państwo w swojej polityce społecznej i gospodarczej uwzględnia dobro rodziny. Rodziny znajdujące się w trudnej sytuacji materialnej i społecznej, zwłaszcza wielodzietne i niepełne, mają prawo do szczególnej pomocy ze strony władz publicznych. 2. Matka przed i po urodzeniu dziecka ma prawo do szczególnej pomocy władz publicznych, której zakres określa ustawa.
14. The State shall promote the equal right of men and women to enjoy all economic, social, cultural, civil and political rights and for this purpose shall take appropriate measures to eliminate all forms of discrimination between the sexes by any person, organisation or enterprise; the State shall in particular aim at ensuring that women workers enjoy equal rights and the same wages for the same work as men.
Article 11.(1) L’Etat garantit les droits naturels de la personne humaine et de la famille.
Article 11.(1) The State guarantees the natural rights of the human person and of the family.
Article 39. The State shall take care of families raising and bringing up children at home, and shall render them support according to the procedure established by law. The law shall make a provision for working mothers to be granted paid leave before and after childbirth, as well as favourable working conditions and other concessions.
39 straipsnis. Valstybė globoja šeimas, auginančias ir auklėjančias vaikus namuose, įstatymo nustatyta tvarka teikia joms paramą. Dirbančioms motinoms įstatymas numato mokamas atostogas iki gimdymo ir po jo, palankias darbo sąlygas ir kitas lengvatas.
Section 154 - Prenatal and Maternity Leave(1) Prenatal leave of 56 calendar days and maternity leave of 56 calendar days shall be summed and 112 calendar days granted irrespective of the number of days prenatal leave has been utilised prior to child-birth.(2) A woman who has initiated pregnancy-related medical care at a preventive medical institution by the 12th week of pregnancy and has continued for the whole period of pregnancy shall be granted a supplementary leave of 14 days, adding it to the prenatal leave and calculating 70 calendar days in total.(3) In case of complications in pregnancy, childbirth or postnatal period, as well as if two or more children are born, a woman shall be granted a supplementary leave of 14 days, adding it to the maternity leave and calculating 70 calendar days in total.(4) Leave granted in connection with pregnancy and childbirth shall not be included in annual paid leave.(5) A woman who utilises pregnancy or maternity leave shall have preserved her previous work. If this is not possible, the employer shall ensure the woman similar or equivalent work with not less advantageous circumstances and employment provisions.Section 155 - Leave to Father of a Child, Adopters and Other Persons(1) The father of a child is entitled to leave of 10 calendar days. Leave to the father of a child shall be granted immediately after the birth of the child, but not later than within a two-month period from the birth of the child.(2) If a mother has died in childbirth or within a period up to the 42nd day of the postnatal period, or in accordance with the procedures prescribed by law up to the 42nd day of the postnatal period has refused to take care and bring up the child, the father of the child shall be granted leave for the period up to the 70th day of the child’s life. The leave referred to shall be granted also to another person who actually takes care of the child.(3) If a mother cannot take care of the child up to the 42nd day of the postnatal period due to illness, injury or other health-related reasons, the father or another person who actually takes care of the child shall be granted leave for those days on which the mother herself is not able to take care of the child.(...)Section 156 - Parental Leave(1) Every employee has the right to parental leave in connection with the birth or adoption of a child. Such leave shall be granted for a period not exceeding one and a half years up to the day the child reaches the age of eight years.(2) Parental leave, at the request of an employee, shall be granted as a single period or in parts. The employee has a duty to notify the employer in writing one month in advance of the beginning and the length of the parental leave or parts thereof.(3) The time spent by an employee on parental leave shall be included in the total length of service.(4) The previous job of an employee who makes use of parental leave shall be retained. If this is not possible, the employer shall ensure the employee similar or equivalent work with not less advantageous circumstances and employment provisions.
Art. 31. The Republic assists the formation of the family and the fulfilment of its duties, with particular consideration for large families, through economic measures and other benefits. The Republic protects mothers, children and the young by adopting necessary provisions.
Article 8 - Maternity benefits
‘1. The Member States shall take the necessary measures to ensure that female self-employed workers and female spouses and life partners referred to in Article 2 may, in accordance with national law, be granted a sufficient maternity allowance enabling interruptions in their occupational activity owing to pregnancy or motherhood for at least 14 weeks.
2. The Member States may decide whether the maternity allowance referred to in paragraph 1 is granted on a mandatory or voluntary basis.
3. The allowance referred to in paragraph 1 shall be deemed sufficient if it guarantees an income at least equivalent to:
(a) the allowance which the person concerned would receive in the event of a break in her activities on grounds connected with her state of health and/or;
(b) the average loss of income or profit in relation to a comparable preceding period subject to any ceiling laid down under national law and/or;
(c) any other family related allowance established by national law, subject to any ceiling laid down under national law.
4. The Member States shall take the necessary measures to ensure that female self-employed workers and female spouses and life partners referred to in Article 2 have access to any existing services supplying temporary replacements or to any existing national social services. The Member States may provide that access to those services is an alternative to or a part of the allowance referred to in paragraph 1 of this Article.‘
‘L. whereas it is vital to ensure that women have the right to combine jobs with rights and the right to motherhood without being penalised for it, since women continue to be worst affected and suffer most discrimination; whereas examples of this discrimination include pressure from employers on women attending job interviews at which they are asked whether they have children and how old they are, with the aim of influencing women’s decisions and opting for childless workers who are ‘more available’, along with growing economic and work-related pressure on female employees not to take maternity leave;‘
‘Calls on the Member States and the Commission, according to their competences, to take steps to combat all forms of discrimination in the labour market, including that against women, and to adopt social protection measures to ensure that women’s pay and welfare entitlements, including pensions, are not lower than those of men doing the same job, to safeguard their maternity entitlements, to take measures to prevent the unfair dismissal of employees during pregnancy and to protect women and men with care responsibilities from unfair dismissal; calls also on the Council to speed up the adoption of the directive concerning the implementation of measures to encourage improvements in the safety and health of pregnant workers, workers who have recently given birth and women who are breastfeeding;‘
‘As Member States with the highest birth rates are also those which have done the most to facilitate the work-life balance for parents and which have high rates of female employment (29), Member States should provide more effective, affordable, accessible and qualitative support for families with children through policies (30), such as:
- Investing in children – through early childhood intervention programmes, particularly the ones that deliver family-focused, home and centre-based services to families.
- Reconciling family and work responsibilities – through co-ordination across a range of areas such as childcare provision, parental leave and family-friendly workplaces.
- Creating a framework favourable for raising fertility rates – in addition to reconciliation policies, through tax efficiencies (e.g. Childcare Voucher Scheme in the UK) and policies aiming at sharing the costs of childrearing more broadly, and allowing young couples to obtain access to affordable housing and a secure footing in labour markets.‘
‘7. Information about employment conditions and protection in case of dismissals
Workers have the right to be informed in writing at the start of employment about their rights and obligations resulting from the employment relationship, including on probation period.
Prior to any dismissal, workers have the right to be informed of the reasons and be granted a reasonable period of notice. They have the right to access to effective and impartial dispute resolution and, in case of unjustified dismissal, a right to redress, including adequate compensation.
9. Work-life balance
Parents and people with caring responsibilities have the right to suitable leave, flexible working arrangements and access to care services. Women and men shall have equal access to special leaves of absence in order to fulfil their caring responsibilities and be encouraged to use them in a balanced way.‘
‘32. Equality in promotion requires the analysis of direct and indirect obstacles to promotion as well as introduction of measures including training and initiatives to reconcile work and family responsibilities, such as affordable day-care services for children and dependent adults. In order to accelerate de facto equality, temporary special measures might be necessary. They should be regularly reviewed and appropriate sanctions applied in case of non-compliance.‘
‘34. Rest and leisure, limitation of working hours as well as paid periodic holidays help workers to maintain an appropriate balance between professional, family and personal responsibilities and to avoid work-related stress, accidents and disease. This also promotes the realization of other Covenant rights and therefore, though States parties have flexibility in light of the national context, they are required to set minimum standards that must be respected and cannot be denied or reduced on the basis of economic or productivity arguments. States parties should introduce, maintain and enforce laws, polices and regulations to cover several factors.‘
‘44. Legislation should identify other forms of leave, in particular entitlements to maternity, paternity and parental leaves, to leave for family reasons and to paid sick leave. Workers should not be placed on temporary contracts in order to be excluded from such leave entitlements.‘
A. Definition of the family
‘24. There is no definition of the family under international human rights law. According to the Human Rights Committee, “the concept of family may differ in some respects from State to State, and even from region to region within a State, and that is therefore “not possible to give the concept a standard definition.” Similarly, the Committee on Economic, Social and Cultural Rights has stated that the concept must be understood “in a wide sense” and “in accordance with appropriate local usage.” Other international human rights mechanisms have expressed similar views.
25. The concept of family may also differ according to the specific rights and responsibilities at stake. For instance, in relation to rights of the child, the concept of the family may include a variety of arrangements that can provide for young children's care, nurturance and development, including the nuclear family, the extended family, and other traditional and modern community-based arrangements, provided these are consistent with the rights and the best interest of children. Likewise, the notion of “family environment” in the Convention on the Rights of the Child may encompass children’s social ties in a wider sense. The Convention on the Protection of the Rights of all Migrant Workers and Members of their Families defines the family as encompassing all relationships that, under applicable law, “produces effects equivalent to marriage” (arts. 4, 44(2)).
26. States retain a margin of appreciation in defining the concept of family in national legislation, taking into consideration the various legal systems, religions, customs or traditions within the country, including indigenous and minority cultures. However, international standards set forth at least two minimum conditions for the recognition and protection of families at the national level: first, the respect for the principle of equality and non-discrimination, including the equal treatment of women; and second, the effective guarantee of the best interest of the child. Given these parameters, human rights mechanisms have found that some forms of relation, such as polygamy and child marriage are contrary to international human rights standards and should be prohibited.
27. In addition to the above principles, international mechanisms have called upon States to protect specific forms of family in view of the vulnerability of their members in relations to the enjoyment of human rights. For instance, the international mechanisms have drawn attention to the discrimination suffered by women and children in de facto unions, and have called for the regulation of those unions in domestic law. In similar terms, the Committee on Economic, Social and Cultural Rights has called upon States to provide legal recognition of same-sex couples.‘
E. Social security
‘66. In Argentina, family allowances cover various family situations, such as marriage, birth, or adoption, as well as an annual child allowance is provided to families with children of school age. In addition, a Universal Child Allowance (AUH) is provided to families in certain circumstances, including those in which parents are unemployed, earn a salary equal or minor to the national minimum salary, work in the informal sector, or are domestic or seasonal workers.
67. In Bosnia and Herzegovina, the main social security instruments of the countries’ territorial entities, the Federation of Bosnia and Herzegovina’s Law on Social Protection, Protection of Civilian War Victims and Families with Children (1999), and the Republika Srpska’s Law on Social Protection (1993), provide maternity allowance during the period of pregnancy and childbirth.
68. In the Russian Federation, under the provisions of the Federal Law on State Subsidies to Individuals with Children (1995), the State provides one-time allowance for child birth as well as monthly child allowances to single-parent families.
69. In Sweden, the Parental Leave Act affords both mothers and fathers the right to be on parental leave from work, as well as extended family leave and reduced working hours. Swedish social security grants parents economic compensation for income loss when staying at home with the child. In addition, the Government grants automatic financial support for all children who have residence in the country.‘
F. Other social protection measures
‘70. In Argentina, the Bicentenary Credit Plan Single Family Housing (PROCREAR) includes the concession of mortgages for the construction of repair of family homes. Hungary provides a social housing subsidy to families wishing to buy, build or expand a house. In the Russian Federation, housing programmes target families with special needs, such as young families and large families. Modalities include access to credit, affordable mortgages, and land allotments. In Sweden, housing allowances are granted to families with children living at home, as well as to low-income families.
71. As part of the National Plan on Food Security, in Argentina the “Pro-Orchard” (Pro-Huerta) programme contributes to improving and diversifying family nutrition. In Colombia, the Network of Food Security (ReSA) supports families with access to food and education on healthy consumption patterns. In addition, the IRACA program supports food security with an ethnically differentiated approach. Mexico implements a variety of programmes in support of disadvantaged families under the Integral Strategy of Social Food Assistance. Likewise, Saudi Arabia implements emergency cash and food programmes as part of wider government efforts to support low income families and families in crisis situations.‘