13 - Frances Camilleri Cassar

Frances Camilleri-Cassar Leave policies and legislation in Malta: How gender equal?

Dr Frances Camilleri-Cassar is the first woman appointed as Full Professor in the Faculty of Laws, University of Malta. Her research interests centre around gender, social policy, and equality law. She has published widely, and her most recent is a monograph entitled: Academic Research Methods for the Law Student: a practical guide, Faculty of Laws, University of Malta.

id-dritt The study gives a direct insight into Malta’s leave policies through unravelling reactions and experiences of a purposive sample of graduate women. Parental leave is unpaid and creates a gender divide as it is taken up largely by women. In parallel, it also creates a sector divide as most care policies exclude those outside of Malta’s public sector. Men’s needs as fathers, as a social issue for leave policies, never feature in political discourse, and have come nowhere close to hitting the political agenda. The reality is that care leave schemes in Malta are based on traditional assumptions associated with motherhood and women’s responsibility to accommodate family obligations around their employment, while the gendered structure of society remains untouched. Women’s voices suggest that Malta’s long and unpaid parental leave is often synonymous with career regression and eventual financial dependence on men. Leave policies that offer no compensation for loss of earnings hinder the equal sharing of care responsibilities and perpetuate gender inequality both at home and in the labour market.

1. Introduction

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ow much do leave policies in Malta assume that men and women both need time to care, as well as for paid work? To what extent do Malta’s leave benefits allow time for the equal sharing of care responsibilities between women and men that, in turn, enhance gender equality in the workplace and domestic sphere? For example, does unpaid parental leave help change or strengthen a traditional gender arrangement? More specifically, to what extent does parental leave support women and men in the equal sharing of time between economic activity, career advancement and family life?

The question that concerns this study is the extent to which Malta’s care policies promote gender equality in employment between women and men.

It explores care benefits that discriminate between the public and private sectors, such as the five-day paternity leave for fathers in the public sector, and the one-day leave for men who make up the rest of the labour supply. It also investigates the current state of affairs in terms of the take-up of parental leave and the career break in the public sector; no comparative data exists for private sector employees. Through the voices of Maltese women, the 258

Employment Law study also addresses their concerns about employment, career regression and economic dependence on men resulting from long and unpaid care leave.

2. Parental leave The EU Directive (96/34/EC) on parental leave, in force since 1996, is part of a larger EU policy agenda that embraces the promotion of gender equality through the reconciliation of employment and family responsibilities1. As part of EU commitment to gender equality, the Directive obliges Member States to introduce legislation that enables parents to care for their child for a period of three months. The Directive specifies no requirement about payment. ‘Central to this agenda has been the view that gender equality involves both greater participation by women in the labour market and greater participation by men in family responsibilities, and that a range of measures can and should be taken to promote these ends’.2 The father’s quota, which is part of the parental leave scheme introduced in Scandinavian policies in the mid-1970’s, ‘signals a new approach to fatherhood and gender equality’ and represents an effort to influence the gender arrangement in the home and at work3. For example, in 1993, Norway established the right for fathers to an equal share in parenthood and in the care of very young children. A special month of ‘daddy days’ was, shortly after, introduced in Sweden in 1995. Men’s rights to care are recognised in law and policy, and Swedish fathers are encouraged to take parental leave which is non-transferable and lost to the family if not taken. Consequently, men can make a stronger case when facing employers and workmates with their claims to care for children4.

While policy for working parents in Sweden is regarded by international standards as generous and important for promoting gender equality, Bjornberg5 seems sceptical of the benefit. In examining Swedish policy and gen1 Peter Moss and Freddy Deven , ‘Parental Leave in Context’ in Peter Moss and Freddy Deven (eds.) Parental Leave: Progress or Pitfall? (NIDI/CBGS Publications 1999).

2 ibid.

3 Leira, A., ‘Cash-for-child care and daddy leave’ in Peter Moss and Freddy Deven (eds.), Parental Leave: Progress or Pitfall? (NIDI/CBGS Publications 1999).

4 Helena Bergman and Barbara Hobson, ‘Compulsory fatherhood: the coding of fatherhood in the Swedish welfare State’ in Barbara Hobson (ed.), Making Men into Fathers: Men, Masculinities and the Social Politics of Fatherhood (Cambridge University Press 2002).

5 Ulla Björnberg, ‘Ideology and choice between work and care: Swedish family policy

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id-dritt der equality in work and family life, she argues that it is taken for granted that women and not men take the lion’s share of parental leave, and that the effects of parental leave on gender equality are not very great. ‘The parental leave package ... constitutes a risk factor for women, since some employers tend to dismiss or downgrade women because of the perceived risks of pregnancy and parental leave’6. Today, Iceland boasts the most developed and effective policy that entails a three-by-three system of a three-month entitlement for the mother, three months for the father, and another three months for sharing between them.7 However, Castro-Garcia and Pazos-Moran8 voice their disquiet with leave sharing, and argue that despite advanced legislation in the Nordic countries, the length of transferable leave makes it difficult, in practice, to achieve full gender equality.

3. What is known about care leave measures in Malta?

In Malta, six weeks after parturition and eight weeks before or after are reserved for the mother, as obligatory. Moreover, the mother is obliged to take six weeks following the birth. There is no ceiling on payment, and leave is funded by the employer. A further period of up to four weeks may be taken immediately after the take-up of the statutory fourteen weeks, and which carry a flat-rate payment equivalent to the statutory minimum wage. The four-week leave, which is not obligatory, is funded by government. Public service employees in Malta have the most far-reaching leave arrangements, compared with those in private sector, concerning child and other familyrelated tasks, such as responsibility leave to care for elderly parents, disabled children and spouses. Indeed, the time-to-care leave scheme in Malta’s public service combines maternity, paternity, parental and a career break, which are benefit entitlements that, to date, are not enjoyed by private sector employees.

For instance, employed parents in Malta’s public sector are entitled to shared leave of absence for one year, for each child under five years, and a one-off five-year career break, while retaining job security and rights to seniority and promotion. However, no wage compensation is attached to the benefit. A study of the Shared Parental Leave Policy introduced in the for working persons’, (2002) 22(1) Critical Social Policy 33.

6 ibid 48.

7 Gillian Pascall, Gender Equality in the Welfare State? (Policy Press 2012).

8 Carmen Castro-Garcia and Maria Pazos-Moran, ‘Parental Leave Policy and Gender Equality in Europe’, (2016) 22(3) Feminist Economics 51.

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Employment Law UK in 2015 finds that the most frequently reported barriers to the take-up were financial reasons and risks to the partners’ career, highlighting the importance of adequate leave remuneration9. Indeed, there is consensus in the literature that in countries with gender-neutral leave policies and shared parental leave, which carry no compensation for lost wages, these have not been much in demand by fathers.

Although parental leave has some potential to change Malta’s gendered arrangement between paid and unpaid work, the entitlement is generally taken up by mothers. Maltese fathers who take advantage of these benefits are still a marginal group. Duvander10 suggests that the key determinant of the length of leave taken by mothers is family responsibilities, whereas it is the economic dimension of work that influences the duration and take-up of leave by fathers. For example, data that draws on Malta’s Office of the Prime Minister Standards and People Division point to a disproportionate use of parental leave by women and men in the public sector. In 2018, fathers’ take-up rate of a one-year unpaid parental leave was three per cent of total number of beneficiaries. In parallel, men’s share of an unpaid five- year career break was a low six per cent of total number of beneficiaries. However, such data are hardly surprising. In view of men’s higher earnings, and the overwhelming reduction in family income if fathers were to stay at home with their children, men are unlikely to take leave, unless it is paid11. A more recent study of why British fathers do not take up their leave benefits finds that financial compensation for lost earnings remains the key determining factor12.

In view of Malta’s legislation for the promotion of gender equality, to what extent have parental leave schemes in the Maltese public sector enhanced men’s rights as carers, and their role as fathers? Has parental leave been instrumental in changing the traditional gender arrangement by uprooting the gender divide to a fairer division of paid and unpaid work? I argue that while State policies may be seen as enabling gender equality in the progression of careers, in practice, they are trapped in the traditional way.

9 Katherine Twamley and Pia Schober, ‘Shared Parental Leave: Exploring Variations in Attitudes, Eligibility, Knowledge and Take-Up Intentions of Expectant Mothers in London’, (2019) 48(2) Journal of Social Policy 387.

10 Ann-Zofie Duvander, ‘How Long Should Parental Leave Be?: Attitudes to Gender Equality, Family, and Work as Determinants of Women’s and Men’s Parental Leave in Sweden’, (2014) 48(2) Journal of Family Issues 387.

11 Peter Moss and Freddy Deven , ‘Parental Leave in Context’ in Peter Moss and Freddy Deven (eds.) Parental Leave: Progress or Pitfall? (NIDI/CBGS Publications 1999).

12 Gayle Kaufmann, ‘Barriers to Equality: why British fathers do not use parental leave’ (2018) 21(3) Community, Work and Family 310.

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id-dritt Additionally, Malta has an employment sector divide. For instance, workers in the private sector have the right to three months unpaid, nontransferable parental leave. However, as there is no statutory entitlement, the benefit remains at the discretion of the employer. Following a critical analysis of Malta’s CEDAW report, the UN Committee on the Elimination of Discrimination against Women drew up a list of key areas of concern and recommendations, one of which was expressly pointing to insufficient opportunities for parents engaged in the private sector, to balance their employment and family responsibilities.

In 2015, government introduced the Maternity Leave Trust Fund as a means of addressing discriminatory practices against the employment of women. The Fund obliges all private employers to pay a contribution to the state’s coffers for the reimbursement of maternity leave salaries in the private sector. It comes as no surprise that a ten-day paternity leave for fathers, based on the 2019 Work-life Balance Directive by the European Parliament and Council of Ministers, was shot down by Maltese employers.

4. Method of research The study asks about Malta’s parental leave and its implications for legislative measures in gender equality. It engages with voices of a random purposive sample of thirty-nine Maltese women between the age of twenty-eight and thirty-eight years, through in-depth, face-to-face, semi-structured interviews.

The primary criteria for the sample of study respondents were partnered heterosexual women, with a tertiary level of education, living with a spouse and dependent children.

Degree courses and specialist training undertaken by the study participants include dentistry, mechanical and electrical engineering, architecture and civil engineering, medicine and surgery, law, pharmacy, science, teacher education, commerce, marketing, accountancy and the arts. Arguably, graduate women present a strong test case for an exploration of the impact of Malta’s parental leave and the employment of mothers with dependent children: they are the better-educated, have wider access to employment opportunities, and would likely have had a clear career path in mind. The existing reality of other groups of women among the lower income and working-class couples in Malta, with fewer resources at their disposal, would necessitate further research. Full transcription of recorded data was analysed to identify themes, 262

Employment Law through the qualitative approach. Respondents chose their own pseudonym to protect anonymity.

My argument in defence of adopting a qualitative method of approach is this: if I were to adopt a quantitative mode of inquiry, associated with objectivity and statistics, would numbers have told me of Nikki’s ‘big shock!’ during her unpaid parental leave as a medical doctor, when she experienced financial dependence on her husband for the first time in her adult life? She says, ‘I think that’s the biggest shock, ending up not even having one cent which really belongs to me!’ Would quantification have allowed me to hear Jade express that, ‘an important part of me has died, the engineer part of me has died, and I feel really bad!’ after she resigned from her full-time employment as an electrical engineer, to take up uncompensated parental leave?

Numbers talk to the extent that both Nikki and Jade would have been a statistic in the parental leave data table. Additionally, I could easily have interpreted their parental leave take-up as reflecting a progressive welfare state. In the contradictions women face, the reality is that both these voices draw strong implications for Malta’s traditional gender regime and its leave policies. I argue that there are aspects to women’s lives that cannot be preknown or pre-defined by a quantitative method of research.

5. Parental leave: what are the implications?

To what extent do Malta’s policy initiatives adhere to equality legislation between women and men? For example, are entitlements to unpaid leave schemes a practical option for Maltese fathers? Respondents in the study argue that if their husband were to take time off to stay at home with their children, the family income would be drastically reduced. It is unlikely that men will spend time in caring responsibilities with no compensation for foregone earnings. Indeed, official data point to a disproportionate use of parental leave by women, while fathers’ employment remains untouched by their transition into fatherhood.

For instance, respondents share similar views when I ask: to what extent would men use their parental leave entitlement? Katia, a virologist says: Very few, I think ... and those who do, use it for themselves ... personally ... I mean ... they’d have some part-time work ... I am sure

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id-dritt ... or I am not sure, let me put it this way ... but I know many men who applied for parental leave so as to do some private work ... I mean, at the back of their mind ... I think a man would find it harder to ... I think the thought behind it would be for him to do something else during that time ...

Similarly, Claire a paediatrician concurs: I think men do take parental leave ... emm ... but as I told you ... some use it for other things ... for trying out a different job ... I mean ... there is abuse ... and maybe that is why parental leave is frowned upon, you see? ... but yes, there are some men who apply for it ...

While unequal shares of domestic responsibilities negatively impact women’s job retention and career progression, women’s voices suggest that leave policies in Malta are offered in a manner that does little to encourage men’s care-giving and to promote gender equality. Men will not be drawn to policies without compensation for lost wages. Essentially, it rests with the State to address what is expected of men by placing it firmly on policy agenda together with an individual entitlement to high remuneration for lost wages.

6. Parental leave: an equal right to care?

The right of parents to take care of their children at home does not correspond to an obligation for Maltese employers, particularly those in the private sector, to grant leave from employment, and a right to return to the job. Workplace culture and structure are based on assumptions that the ideal worker should prioritise work above any family responsibilities13. Indeed, the women in the study signal that, irrespective of children’s presence and family obligations, employers still expect a full-time attachment to the job.

Home and family are considered a private matter, and outside employers’ responsibility.

The voices of the women in the study seem to reflect traditional gender expectations that influence workplace culture to the extent that parental leave is often negotiated with the employer on a one-to-one basis, especially where no such leave is included in the collective agreement. Moreover, 13 Linda Haas and Philip Hwang, ‘Policy is not enough: the influence of the gendered workplace on fathers’ use of parental leave in Sweden’ (2019) 22(1) Community Work and Family 58.

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Employment Law Moss and Deven14 argue that ‘existing inequality also gives fathers a more powerful voice than mothers in family negotiations about the use of leave, and contributes to a situation where it may seem self-evident that the mother should take all the leave’.

For example, Rose is a qualified electrical engineer who now describes herself as a full-time housewife. During her pregnancy, and as Rose was climbing the career ladder, her husband ‘encouraged’ her to resign from paid work, ‘so as to be able to rest’. As a private sector employee, she had no entitlement to care leave other than the statutory maternity leave. She contends that parental leave in the public sector would be ‘ideal’ as it allows the mother to look after her child until school age, and return to ‘some kind of economic activity, maybe part-time or a half-day job’. I interviewed Rose at her home, and in the presence of her husband who insisted that he must listen to the interview. Both before and during the interview with Rose, I could observe strong male influence on the respondent’s decisions, and a traditional gender arrangement in the home. She says: I think family-friendly policies are always helpful ... they are an opportunity for those who want to continue working ... there is a scheme ... I’m not sure who it applies to ... that scheme where you can stop for some time ... a year or something? ... then you can go back ... that is good ... I did not apply for maternity leave because I had no intention of staying at work, but for those who have the five-year parental leave it is good ... the first five years of a child’s live are the most crucial ... so after five years you can do some work ... maybe some part-time or half-day.

Gabrielle qualified in management. She makes up for the care leave deficit in the private sector by using her entitlement to vacation days immediately after the end of the statutory maternity leave. She claims: Emm... I think they’re very good measures especially for those in the public sector as it would have solved a lot of my problems ... but as I am working in a private business, if I go on leave ... for long leave ... they would have to employ somebody else ... so then if they employ somebody else, I’m out ...

14 Peter Moss and Freddy Deven , ‘Parental Leave in Context’ in Peter Moss and Freddy Deven (eds.) Parental Leave: Progress or Pitfall? (NIDI/CBGS Publications 1999).

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id-dritt Brenda too is in private industry, and works full-time as a human resources manager. However, unlike Gabrielle, she returned to work when her maternity leave was up. She emphatically says, ‘I could do that because I have my mother’s support!’ Interestingly, as an HR manager, Brenda’s views on leave schemes for care reflect employers’ perspective: Parental leave? ... I think it’s good ... but we don’t have that in private industry ... forget it! ... that’s excellent! ... but then, let’s put it this way ... you can’t ... now I’m talking from the perspective of private employment ... you can’t expect to pay somebody who is not giving you anything ... you’re just keeping his place ... it’s impossible ... you’d have to employ somebody on a definite contract ’cause you’re not going to send the person out ... then it would be a problem ... there’s a lot of work involved ... it’s not that easy to do.

Raquelle is an architect who works full-time for a private firm. As she is not entitled to care leave, her mother looks after her daughter. Raquelle voices her views on parental leave: I think that such policies are very positive, but unfortunately they apply only to persons working for the government ... for example, we have no parental leave ... we do not enjoy the same benefits as those working for the government ... in our case, we rely on the benevolence of the manager above us ... now, very often ... unfortunately ... you find that our managers are still the men ... forty- fifty-year olds ... so their attitude is old-fashioned ... I’m not saying they don’t help, you know ... when I asked for maternity leave they immediately gave it to me ... but I know others who were not given it ... it is very subjective ... I have no parental leave, no ... and the most they might allow are six months unpaid leave ...

7. Parental leave: a path to career regression?

Catherine works full time as a qualified geneticist. She argues that family-friendly measures do not always facilitate women’s participation in the labour market, and that unpaid parental leave is detrimental, rather than advantageous, to a woman’s career. Her response illustrates the point: ... parental leave? ... the option to take 5 years? ... I used to think I would take that ... but when I came to it ... I mean, this is the time 266

Employment Law when my career is ... emm ... gaining momentum ... you know? ... and to stop for 5 years it was just not the right time, career wise ...

I mean, in 5 years I’d become outdated in my field ... I’d have lost all I studied for during the last 10 years ... and ... emm ... the fact that it is unpaid also matters ... I would not have been able to do it financially ... so there are two things ... career wise and financially ...

Corinne is a full-time gynaecologist, and pregnant with a second child.

She aims to achieve the post of consultant in Malta’s state hospital. However, she seems convinced that care leave will prove detrimental to her career advancement: ... I would like to proceed to the consultant grade ... eventually ... but it seems unlikely that that will ever happen ... at this stage of my life I will probably take maternity leave or unpaid leave ... that would mean I will be pushed down the career scale ... emm ... I am going to take maternity leave ... that’s for sure ... whether or not I’ll take a year unpaid is still debatable ... I’m still trying ... if ... if possible, I will try to avoid it ... it will definitely affect my career progression ... you cannot ignore the fact that being away from the department for 3, 4, 5 years ... I mean ... when it comes to career advancement ... you know?

8. Gender equality in unpaid parental leave?

In many respects, there seem to be some contradictions, at policy level, in Malta’s parental leave benefit. For example, does not unpaid parental leave perpetuate a traditional gender regime? Does not women’s overwhelming take-up of parental leave reaffirm a gendered domestic division of labour, and women’s dependence on men? Does not the gender wage differential automatically predispose women and not men to unpaid parental leave?

Bussemaker and Kees van Kersbergen15 signal that ‘a possible loss of earnings as a consequence of parental leave easily extends the inequality between men and women on the labour market, because the earnings of men are not interrupted’. Alternatively, unpaid parental leave may cause financial hardship to those who cannot afford to live on one breadwinner income.

15 Jet Bussemaker and Kees van Kersbergen, ‘Contemporary Social-Capitalist Welfare States and Gender Inequality; in Diane Sainsbury (ed.), Gender and Welfare State Regimes (Oxford University Press 1999).

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id-dritt Lorraine, who graduated as a chartered accountant, has had to shift her career to teaching so as to keep up with her family responsibilities. She says: ... family friendly measures are very good ... very good ... but the fact that parental leave is unpaid ... I know some who could not take it because they needed the money ... they had many expenses ... but I don’t think it can be paid ... I mean ... if we’re staying at home ... it would be cheeky of us to expect to be paid as well, do you understand?

During the time of the study, Charlotte was working reduced hours as a pharmacist, and describes the implications of uncompensated parental leave as follows: ... yes, yes, it was a big problem, yes ... in the beginning ... emm ...

I mean, the first few months after I had the baby ... when I stopped getting the pay ... it was very, very tough ... I mean ... I admit ... yes ... there were times we could barely cope (brief laughter) ... but then, I mean ... would they consider paying me for so many years? ... yes, it was very ... in fact, that’s why I went back to work during my parental leave ... that’s why ... I know I shouldn’t have done that, it’s illegal … but what else could I do?

Francesca, who works in private industry as a mechanical engineer, was forced to exit the labour market as she was not entitled to parental leave. She claims that it would not have mattered to her that parental leave is unpaid, as she relies on her husband’s income. She says: Parental leave is a positive thing because then you can go back when the child starts school ... but in our case it is not applicable [in the private industry] ... I had to resign ...

Moreover, Claire, a full-time paediatrician, says that parental leave in Malta is commonly frowned upon, and perceived by employers as a nonessential benefit: … if you are applying for parental leave, you get frowned upon a little bit, you know? ... it’s not something that’s been accepted … there’s been abuse with this parental leave business, you know what I mean?

To what extent are Malta’s policymakers aware that parental leave policies 268

Employment Law may be to women’s disadvantage when their husband enjoys no similar benefits? For example, Audrey, who graduated as an architect and was on unpaid parental leave during the time of the study, says that her husband, who works in the private sector, is not eligible to such leave: I did not stop work because I wanted to ... the fact that I work for the government makes it easier for me to stop ... my husband works in the private sector so he has no options ... they have no parental leave ... so it was obvious that I was the one who had to stop not he ...

The voices of the women in the study seem to suggest that despite legislative measures and rhetoric from the top, leave policies are drawn up with women in mind and are offered in a manner that do little to promote gender equality.

9. Conclusion The study’s major contribution to knowledge is an understanding of the nature of Malta’s gender equality legislation, its assumptions about gender roles, and the consequent limitations of its parental leave policies. There appears to be a deeply ingrained set of cultural assumptions, structures and obligations that spill over into relationships within the bureaucracy, such that government policies are blunted in their effect. Indeed, the strong pressure to the legacy of the male breadwinner and prevailing gendered stereotypes of society are embedded not only in Maltese culture and its social norms, but also in the State’s own social policy.

The findings further imply that while Malta emulates a progressive gender equality agenda forged under EU standards, the experience of Maltese women at work and in the family has remained the same. The majority of careleave takers in Malta are women, and men’s disappointing take-up may well be considered an indicator of the social phenomenon of the division of family work and paid work along gender lines that remains unchanged.

It appears, there is much that government can do. Parental leave and career breaks that are paid and inclusive will begin to challenge Malta’s traditional assumptions associated with motherhood and employment. If government really wants to promote gender equality, an essential part of the

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id-dritt agenda is to bring fathers into care by introducing higher levels of income replacement, and the ‘use it or lose it’ principle of non-transferable leave.

Fathers’ low take-up rate turns parental leave into a trap, locking women out of the labour market.

Moreover, the link between public sector employment and parental leave policies is strong. A significant change would be for the State to do away with the divide in policy entitlement between the public and private sectors, as this can only serve to create an exclusive group of workers deserving of more favourable policies not enjoyed by the rest of the labour supply.

Malta’s leave policies that support family are not news, but instituting rights and setting new norms for fathers to care certainly are. Future research might raise questions addressed in this study through a national representative sample population that includes findings drawn on the voices of men and fathers. As a balance, there is a need for more studies, both indepth qualitative and macro quantitative, that will document and analyse male profiles and their perception of care policies, involved fatherhood, and implications for legislative measures in gender equality.

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