Legal Rights of Pregnant ATCOs

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Legal Rights of Pregnant ATCOs

35TH ANNUAL CONFERENCE, Tunis, Tunisia, 15-19 April 1996

WP No. 138

Legal Rights of Pregnant ATCOs

Introduction

The purpose of this working paper is to analyse the legal process that looks at the general characteristic of female ATCOs which prevented them from complying with what are seemingly natural conditions or requirements in particular child-bearing biological role. The roles have been ignored and may turn a natural employment condition into a gender-based standard in the view of loss or suspension of licence upon getting pregnant. There are recommendations that have been drafted that need legislation to support them. Although a considerable gap can exist between what is stated in the law and what is required or followed in practice there is need to establish that such legislation can be utilised to iron out these anomalies.

Existing IFATCA Policy :

Pregnancy is a normal female human condition which must not result in automatic suspension of an ATCO’s licence.

When considering the design of the workplace and working conditions, employees should also take into account the requirement of pregnant ATCOs.

Pregnant ATCOs have the right to expect that the possible physiological problems associated with pregnancy will be accommodated by their employers in the form of available relief staff.

Pregnant ATCOs should have the right to transfer temporarily from shift work to daytime working if they so choose.

Pregnant ATCOs should have the right to transfer temporarily to non-operational positions if they so choose.

When recommended by a pregnant ATCO’s own physician adequate leave with pay should be provided.

Adequate maternity leave, together with protection of the equal opportunity rights of pregnant ATCOs should be provided.

 

Discussion

The female ATCO does not have to earn recognition and protection through motherhood but is entitled to full protection as a human being. Legal protection aims to compensate for this biological difference or for performing a socially and economically useful function. The demand for full legal equality runs into immediate difficulties when it is extended to pregnant ATCOs for it ignores not only existing difference in social roles of the sexes. To ignore this reality of the women’s role is to seek to make women surrogate men in a world that is still a man’s world. Thus the employer should cater appropriately for all human needs men and women alike. Whilst anomalies have been tentatively addressed in existing IFATCA Policy, liberal ideas have their limitations and be extensively debated to define the realities of different gender needs.

Due to the complexity of the ATC profession it is difficult to fully implement some of the ILO recommendation as there are medical constraints that will govern how long an ATCO can remain operational.

According to medical analysis pregnancy is not a normal human condition though it is a normal female condition. The hormonal changes that take place during pregnancy tend to alter the normal human metabolism. These changes occur during the early months of the pregnancy and may stabilise during the middle months of pregnancy. Thus resulting to medical fitness in some pregnancies (see ICAO Annex 1.6.3.2.23.1), in the absence of significant abnormalities accredited medical conclusion may indicate fitness during middle months of pregnancy. The psychological side effects of the hormonal changes haven’t been analysed, although medical studies have shown that females handle stress conditions better than males. Pregnancy should be assessed on individual basis with the necessary medical assessment from a medical doctor to ascertain the normality of the pregnancy so as to allow the ATCO to remain operational. Special care should be taken for ATCOs operating on radar displays since the physical and psychological symptoms include eye strain, headaches, chest pain, tension, nausea, dizziness, digestive problems and depression. The severity of these stress related illnesses depend on the intensity of work (i.e. number of operational hours). There is also the risks of radiation of pregnant ATCO, this discrepancy can be overcome by introducing monitors in the operation rooms. The above supports IFATCA Policy as shown in the IFATCA Manual page 4222 para. 2.6.

Pregnancy is a normal condition (quote pregnancy an objectively identifiable physical condition with unique characteristics USA Supreme Court in Geduldig v Aiello 1974). The American legislation has recognised that pregnancy is a normal female condition as redressed in the Equal Employment Opportunity Act 1972 and the Pregnancy Discrimination Amendment 1978 Section 701K states that “the statute which defined sex is to include pregnancy childbirth the same as other condition similarly affecting the ability or inability to work”. The Equal Employment Opportunities Commission amended Title VII of the Civil Rights Act 1964 to read, “…the law does not require an employee to provide a specific number of weeks for maternity leave. A woman unable to work for pregnancy related reasons is entitled to disability benefit or sick leave on the same basis as employees unable to work for other medical reasons. Equal Rights Amendment US constitution requires that benefit privileges and obligation conferred by law should be the same for both sexes equally. This legislation does support IFATCA Policy 4222 2: 2.6, 2.6.7, 2.6.8 of Jerusalem Conference.

In the context of the European Economic Community founding document on Equal Treatment for men and women, “Equal Treatment for men and women states that, equal treatment for men and women must be assured equal opportunities for men and women must be developed. To end action should be intensified to ensure the implementation of the principle of equality between men and women as regards in particular access to employment remuneration working conditions, social protection should also be developed enabling men and women to reconcile their occupational and family obligations. Emphasis is on the working conditions, as IFATCA Policy 4222 2:6 6.2 of the Jerusalem Conference.

Directive 76/207 of EEC Article 2(3) …. to be without prejudice in provision concerning the protection of women particularly as regards pregnancy and maternity and measures to promote equal opportunities in particular by removing existing qualities which affect women opportunities. The directive is intended to protect a woman’s biological condition and the special relationship which exists between a woman and her child in line with IFATCA Policy 4222 2:6 2.6.8.

Generally on employment and gender the ILO has adopted a number of conventions and recommendation in support of women’s right in line with the United National Declaration of Human Rights (see Part 5). Due to the complexity of the ATC profession, it is difficult to fully implement some of the ILO’s recommendations as there are medical constraints that governs how long an ATCO can remain operational. International comparisons are difficult to make because of the different institutional and legal arrangements. The answers will depend on the particular circumstance of individual legislation applied in different states (as in the 2.3 and 2.4) in line with the ILO recommendations and conventions that provide guidelines on subject which are not covered by the convention (ref Conditions of Work Digest Vol 1 Maternity and Work).

The following are some of the ILO recommendations and deliberations that support the draft IFATCA Policy 4222 2:6 2.6.1 – 8

a) Maturity Protection 1919;

b) Maternity Protection Revised 1952;

c) Maternity Protection Recommendation 95;

d) Night Work – 1990 Article 6, 7 and 10;

e) Workers with Family Responsibilities 1981;

f) Human Resources Development 1975 Article VII Promotion of Equality of Opportunity of Women and Men in Training and Employment;

g) Discrimination (Employment and Occupation) (see Part 5 for full recommendation)

Conclusion

As stated the full legal equality of pregnant ATCOs runs into immediate difficulties due to the medical constraints that have already been established. Although a majority of pregnant ATCOs may benefit much less from legislation (e.g. developing countries), rights for all the intrinsic inadequacies of formal measure are better than no rights. The world of ATC is being transformed because of the increasing participation of women therefore new difficulties, challenges and risks are arising for both men and women ATCOs. Therefore research and renewed analysis and dissemination is essential for effective planning for the adoption of innovative employment policies suited to the new and constantly changing world of ATC.

Recommendation

This working paper is information material for IFATCA.

References

ILO Recommendation and Conventions:

a) Conditions of Work Digest Maternity and Work Volume 13 1994

b) Convention 103 maternity protection (Revised) 1982 Recommendation 95 Maternity Protection 1952

ILO Convention 171 : Night Work 1990:

Article 6:

1. Night workers certified, for reasons of health, as unfit for night work shall be transferred, whenever practicable, to similar job which they are fit.

If transfer to such a job is not practicable, these workers shall be granted the same benefits as other workers who are unable to work or to secure employment.

A night worker certified as temporarily unfit for night work shall be given the same protection against dismissal or notice of dismissal as other works who are prevented from working for reasons of health.

2. Measures shall be taken to ensure that an alternative to night work is available to women workers who would otherwise be called up to perform such work:

a. before and after childbirth, for a period of at least sixteen weeks of which at least eight weeks shall be before the expected date of childbirth;

b. for additional periods in respect of which a medical certificate is produced stating that it is necessary for the health of the mother and child:

i. during pregnancy;

ii. during a specified time beyond the period after childbirth fixed pursuant to subparagraph a. above, the length of which shall be determined by the competent.

Article 7:

1. Measures shall be taken to ensure that an alternative to night work is available to women workers who should otherwise be called upon to perform such work:

a. before and after childbirth, for a period of at least sixteen weeks of which at least eight weeks shall be before the expected date of childbirth;

b. for additional periods in respect of which a medical certificate is produced stating that it is necessary for the health of the mother and child:

i. during pregnancy;

ii. during a specified time beyond the period after childbirth fixed pursuant to subparagraph (a) above, the length of which shall be determined by the competent authority after consuming the most representative organisations of employers and workers.

2. The measures referred to in paragraph 1 of this Article may include transfer to day work where this is possible, the provision of social security benefits or an extension of maternity leave.

3. During the periods referred to in paragraph 1 of this article:

a. a woman worker shall not be dismissed or given notice of dismissal, except for justifiable reasons not connected with pregnancy or childbirth;

b. the income of the woman worker shall be maintained at a level sufficient for the upkeep of herself and her child in accordance with a suitable standard of living. This income maintenance may be ensured by any of the measures listed in paragraph 2 of this Article, by other appropriate measures or by a combination of these measures;

c. a woman worker shall not lose the benefits regarding status, seniority and access to promotion which may attach to her regular night work position.

4. the provisions of this article shall not have the effect of reducing the protection and benefits connected with maternity leave.

Article 10:

1. Before introducing work schedules requiring the services of night workers, the employer shall consult the workers’ representatives concerned on the details of such schedules and forms of organisation of night work that are best adapted to the establishment and its personnel as well as on the occupational health measures and social services which are required. In establishments employing night workers this consultation shall take place regularly.

ILO Convention 156 – 1981 : Equal Opportunities Equal Treatment for Men and Women Workers – Worker with family responsibilities:

Article 3:

With a view to creating effective equality of opportunity and treatment for men and women workers, each Member shall make it an aim of national policy to enable persons with family responsibilities who are engaged or wish to engage in employment to exercise their right to do so without being subjected to discrimination and to the extent possible, without conflict between their employment and family responsibilities.

Article 4:

To take account of their needs in terms and conditions of employment and in social security.

Article 9:

The provision of this Convention may be applied by laws or regulations, collective agreements, works rules, arbitration awards, court decisions or a combination of these methods, or in any other manner consistent with national practice which may be appropriate, account being taken of national conditions.

WORKING CONDITIONS AND ENVIRONMENT

Attention will focus on the following areas:

The appropriate of special protective measures prohibiting or limiting women’s access to certain types of work or applying special restrictions to their conditions of work, which is being debated from the point of view of equal opportunity, will continue to be studied. A meeting of experts will be held to discuss the main issues raised by this debate and for the purpose of providing guidance on future activities, which may include the revision of existing standards or the adoption of new ones.

Measures aimed at maternity protection, while controversial in some countries, are widely accepted as being not only compatible with, but also necessary for equality of opportunity. In 1983, the Governing Body considered a report on the Maternity Protection Conventions N.3 91919) and No. (1952) and asked the Director General to explore the issues and revert to the question as soon as this exploration had advanced sufficiently to permit the formulation of proposals for future action. Accordingly, the Office will continue to review and publish information on trends concerning maternity protection, particularly on maternity leave, security of employment for pregnant and nursing women, and health protection.

Measures relating to the arrangement of working time and development of work-related facilities are particularly important for promoting equal opportunity since they can assist workers in coping with family responsibilities, which still weigh most heavily on women.

A study on the organisation of working time in public services is to be undertaken. Future proposals will include an assessment of the impact of flexible working patterns, including parttime work, on the promotion of equality and general survey by the Committee of Experts on the Application of Conventions and recommendations on the Paid Education Leave Convention (No. 140) and Recommendation (No. 148), 1974. A study on childcare services and a workers’ education manual on work-related welfare facilities are proposed for 1998-890. Future work will emphasise services or informal sector workers. Welfare facilities are also a promising area for technical co-operation. It will be proposed that the Committee of Experts carry out a general survey on the Workers with Family Responsibilities Convention (No. 156) and Recommendation (No. 165), 1981, and information on the measures envisaged in these instruments will be prepared and disseminated.

Last Update: December 25, 2019  

December 25, 2019   65   Jean-Francois Lepage    1996    

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