A comparative study between Sweden and Macedonia
Author:
Katerina Mirkoska
Bachelor Thesis in Labour Law
HARGH16
[Fall 2015]
Supervisor:
Vincenzo Pietrogiovanni
Table of contents
1 Introduction 5
1.1 Purpose and research questions 6
1.2 Methodology 7
1.3 Delimitation 10
1.4 Disposition 12
2 The EU legal framework 13
2.1 Conditions for membership 13
2.2 Directives from the EU 14
2.2.1 Parental Leave Directive 15
2.2.2 Pregnant Workers Directive 17
2.2.3 Equal Treatment Directive 17
3 The Swedish legal framework 19
3.1 Background 19
3.2 The parental leave legalisation 20
4 The Macedonian legal framework 23
4.1 Background 23
4.2 Legislation regarding parental leave 24
5 Comparative analysis 27
6 Conclusion 32
Bibliography 33
Glossary
AD The Swedish Labour Court
CEE Central and Eastern Europe
CEEP European Centre of Employers and Enterprises providing Public Services
CJEU Court of Justice of the European Union
ETUC European Trade Union Confederation
EU European Union
TFEU Treaty of Lisbon, The treaty of the functioning of the European Union
UEAPME European Association of Craft, Small and Medium-Sized Enterprises
UNICE Confederation of European Business (Also BUSINESSEUROPE)
Abstract
The existing parenting protection legislation affects the labour market by setting standards for working parents. This to make sure they have the right to leave in order to take care of their children. These laws regulate not only the time frame and the days allowed for leave, but also contribute to the general view on gender roles and views on which parent is the primary one. The conservative perception of the mother as the primary care taker is tangibly present which consequently leads to the view of males as the traditional workers. Subsequently gaps in women’s career paths are being occurred in societies where the mothers usually refrain time from paid labour in order to take care of the common children. At the same time, room is being given for the fathers to have a family life and keep their career intact, since the burden of taking care of their children is not expected nor required from them. Also, by perceiving gender in this way, leads to discrimination of women in the labour market. With the aim to eliminate this, directives from the EU has been developed, aiming at gained equality and giving working mothers further rights and by these create uniformity within the EU. The lack of existing legislation which aims at incorporate the males to take part of the parental leave are clearly absent. In both Sweden and Macedonia, which are being compared in this thesis, the case is so. Apart from this, the laws differ substantially in the two countries. This comparison is giving a glimpse of how these two European countries are interpreting the same directives regarding parenting and work. It proves that women do take most of the parental leave which consequently lets the working fathers choose whether or not they want to participate in the child care, a choice that is not given to the working mothers. It can be argued that these laws are not achieving their main aim in gaining an equal labour market and may be seen as insufficient. However, they seem to be in constant change which may lead to a more equal labour market and hence society in the future.
Sammanfattning
De lagar som finns gällande föräldraledighet påverkar arbetsmarknaden genom att sätta normer för arbetande föräldrar. De reglerar inte bara hur mycket och under hur lång tid en arbetande förälder kan vara ledig, utan bidrar också till den generella synen på könsrollerna i samhället och med det även synen på vem som är den primära föräldern. Den konservativa uppfattningen av modern som den huvudsakliga vårdgivaren av barnen är påtagligt närvarande i dessa lagar. Följaktligen leder detta till att den generella synen på en traditionell förvärvsarbetare är en man. Som ett resultat av bland annat dessa lagar uppstår avbrott i kvinnors karriärer i samhällen där de arbetande mödrarna oftast tar ut det mesta av föräldraledigheten och därmed avstår från förvärvsarbete. Samtidigt ges det utrymme för fäder att erhålla familjeliv utan att bryta deras karriärbana, då bördan att ta hand om barnen varken förväntas eller krävs från dem. Synen på könen utifrån detta perspektiv leder också till diskriminering av kvinnor på arbetsmarkanaden. Med syftet att eliminera detta har EU utvecklat direktiv med avsikten att öka jämställdheten samt ge arbetande mödrar ytterligare rättigheter och med detta skapa en större enhetlighet inom EU. Avsaknaden av lagar som syftar till att involvera männen att ta ut större del av föräldraledigheten är påtagligt frånvarande. Så är fallet i både Sverige och Makedonien som jämförs i denna uppsats. Förutom detta så skiljer sig lagarna i huvudsak i de båda länderna. Jämförelsen ger en inblick i hur Europeiska länder tolkar samma direktiv gällande föräldraledighet och arbete. Det visar att kvinnor tar ut mest av föräldraledigheten vilket resulterar i att de arbetande papporna kan välja vare sig de vill involvera sig i barnomsorgen eller inte, ett val som inte ges till de arbetande kvinnorna. Med detta sagt kan man tolka det som så att direktiven och bestämmelserna inte uppnår sina primära mål att öka jämställdheten på arbetsmarknaden och kan därmed ses som bristfälliga. Trots detta verkar de vara i ständig förändring vilket kanske kommer leda till en mer jämställd arbetsmarknad och mer jämställt samhälle i framtiden.
1 Introduction
During the latest decades there have been directives from the European Union (EU) regarding equal treatment of men and women in matters of employment and occupation and directives regarding extra protection for pregnant workers.[1] Some cases that were brought up to the Court of Justice of the European Union (CJEU) regarding these issues raised my knowledge about the differences in parental leave within the member states of the Union.[2] With this in mind I got interested in how this kind of regulation can affect the labour market for women and in the long run – their careers. Since the workers no longer are presumptively male, changes in both labour markets and households have destabilised the assumptions of the rules regarding work and family issues.[3] These issues can be examined through the lens of a specific legislation.[4] Since there are quite striking differences in the parental leave legislation even in those countries that are member states[5], it got me thinking about the remaining European countries that are still not members of the EU but have the will to join it. How do the parental leave legislation function in a country that is aiming at membership? I got interested in looking into how one of these countries is dealing with the parental leave directive, since I find this to be important for future equality. These matters have always been very closely linked to my interest with labour law, hence why I have chosen this subject. My preconception is that for some Southeast European countries the road to membership may seem long. Looking at the steps that have been made from current candidate countries, the processes have been slow.[6] The adaption of the legislations from the EU regulations can seem too distanced when compared with former national legislation. Since I understand the Macedonian language and the country joined the candidate status it seemed suitable to see how its legislation regarding parental leave functions in comparison with the Swedish one. The choice to compare with the Swedish legislation is of interest since Swedish parental leave legislation has been existent since 1974,[7] even if a lot of changes have been made in the legislation since then.
1.1 Purpose and research questions
The aim of this thesis is to compare the parenting protection legislation in Sweden and Macedonia. Since the countries stem from different legal systems and have very different history, the main focus will be on the differences between the two countries legislations. The purpose is to gain knowledge about the merging of Europe with EU as a common denominator, in questions that affect women in the labour market and their families. By comparing and outline the differences, the aim is to gain an understanding about how the legislation by its configuration sets the standards for how parenting is perceived. I find these laws in particular to affect the labour market for women. Also it can be of interest to look into how the EU influences and changes a country’s legislation by reshaping it in order to fit a specific frame. One might say that Macedonia has not had the luxury to think of equality when bigger and more comprehensive problems have had to be dealt with first.[8]
The aim of this research is also to present relevant information about how the maternity- and parental leave legislations can be formulated and used as a factor to gain equality and go way beyond the minimum requirements that has been set up by the EU. The importance of looking at one countries quest to gain equality, not because they are being forced from the EU, but mainly because it is considered important to create an equal state. This can be of importance for future development of legislations regarding these questions in a country where questions like these still are considered as new.
The main questions that will be investigated are as follows:
- How are maternity- and parental leave regulated in Sweden and Macedonia?
- How is the burden of parenting and work shared in the two countries?
The focus will be on what the parents’ rights and obligations are from the day that the baby is born and try to make as clear of an overview as possible for the following months ahead. Connected to these legislations are, of course, the regulations regarding the rights of a pregnant woman and the general equality on the labour market. The discrimination act is also of importance when looking at these questions. Therefore, apart from the parental leave directive other directives regarding pregnancy and equal treatment will be studied, as they in the national legislation is somewhat intertwined in the same laws, I would have not been able to make comprehensive analysis without stating information from these.
1.2 Methodology
The method used for this analysis will mainly be the comparative one with elements from the legal method of the EU. In order to gain a better understand and knowledge of both Swedish and Macedonian legislation I intend to determine the current laws by traditional legal dogmatic method to define de lege lata.[9] I will do this by stating the contents of the relevant sources of law and see how they have been interpreted in the two countries. The main focus will be on the interpretation of the EU directives related to maternity- and parental leave,[10] and their national implementations in Sweden and Macedonia.
Even though the comparative method is of great importance for this study one cannot overlook the presence of the legal method of the EU. Firstly, Sweden as a member state is bound by the legislation and must oblige with the agreements that generate from the EU. Secondly, as Macedonia is preparing for membership it is implementing a lot of the same directives as all the member states. In order for Macedonia to become a part of the EU, the change of its legislations in accordance to EU-law is of outmost importance. By this way the preparation is proceeding against membership which is why the understanding of the methodology of the EU-laws is essential.
The knowledge of other countries legislations is necessary to gain understanding in a particular respect. Regulations from the EU can sometimes only be fully understood when given knowledge about what applies in other member states.[11] Also it is a valuable source when creating new laws, or only to find possible solutions to a legal problem which makes the comparative methodology reasonable for any legal research.[12] Apart from gaining knowledge and satisfying ones curiosity, the comparative methodology also highlights domestic solutions.[13] Even if the purpose is not to obtain de lege ferenda, this might be the case of comparative studies like this, since it gives an alternative point of view of a legislation that can seem fixed and irreplaceable.[14] Bogdan mentions that studies like these are of value even for those who are merely interested in understanding one country’s legislation, to see one’s own legal order from a new angle.[15] It is unquestionable to use the comparative methodology when interpreting rules that are based upon international cooperation.[16] It is basically the natural choice when looking at different countries legislation, leaving the comparator with a starting point in their own country’s legal order to then focus on the differences when comparing with another.[17]
Since I will be comparing the parental protective legislation in Sweden, which is a member of the EU, and in Macedonia, that is a candidate country; one might wonder why that would be of significance. I consider it to be relevant when it comes to looking at legislation coming from the EU, which for a fact is being implemented even in countries that are not members yet. The Macedonian legislations is adapting and redoing some of its laws in accordance with EU law and the parental protective legislations are examples of those that have been implemented. Since the countries are very different and one of them has been a member since 1995[18] and the other one is still striving to become one, the interest of looking at both similarities and differences is relevant to put the legislation in perspective. Partly to present how the parental leave and laws regarding maternity can differ in the way the countries are interpreting them and also to make a clear view of what the legislation is implying when it comes to the view on the parent's role and consequently the role of a worker. The legislations up for comparing are having the common tertium comparationis, which is that they are created to solve the same issues.[19]