MODIFICATIONS TO WORK-FAMILY POLICIES IN CHILE: A SOLUTION?

Natalia Serón

I. INTRODUCTION

Chile, as a civil law country, establishes most of its policies through laws enacted by the

Congress. The policies and measures that help to balance work and family obligations can be found

in the Labor Code (D.F.L. No 1 of July 31st, 2002, and its amendments1) and other rules, including

those the regulations enacted by the Labor Ministry and the Labor Agency.

According to Caamaño2, it is possible to distinguish two different phases in the normative

evolution of the protection to working mothers: The first stage was focused on protecting women as

mothers and because of their “condition” of women, which was based on the understanding that

women were weaker than men. There was a restricted view of the rights of the women as citizens

and an overestimation of their role as mothers. These ideas were also linked with a traditional view

of the family: the father was the breadwinner and the mother was in charge of the household and the

kids.

This view began to change in the 1960’s with a progressive increase of women’s

participation in different areas, such as the labor market, the educational system, and politics.

Although the tone of the legislation was viewed as discriminatory against women, it was not until

the end of the 1980’s3 that the law began to change.

The second stage began when the Chilean legislation started being modified in order to

comply with international obligations established by Treaties expressly ratified by the Chilean

Government such as: the ILO Convention concerning Equal Opportunities and Equal Treatment for

1
This code has been amended 28 times since it was enacted. It shall be noted that each amendment modified a
specific section or group of articles of the Code, and that each amendment takes the form of a new law. These
amendments have been an ineffective way of giving answers to the changes in the labor market and society,
especially because there has not been a systematic modification.
2
Eduardo Caamaño Rojo, “Los efectos de la protección a la maternidad para la concreción de la igualdad de
trato entre hombres y mujeres en el trabajo” XXXIII R.D.P.U.C.V 175, 179 (2009).
3
Even though this goes beyond the scope of this work, it is important to understand the position of women in
Chile knowing that women who were married in an specific regime of goods (community property) were
treated as minors. They did not have legal capacity to enter into contracts without her husband’s
authorization.

1
Men and Women Workers; Workers with Family Responsibilities No 153 4; the Maternity

Protection Convention No 1035; and the Convention on the Elimination of All Kind of

Discrimination Against Women.6

Continuing with the process of adaptation to international standards, in February 28 th, 2011

the Chilean President Sebastián Piñera presented a Bill to the Congress in order to change some of

the work-family policies that are currently in force, with the purpose of “improving the better caring

of our daughters and sons, and our mothers”7.

This paper will analyze the aforementioned Bill within the Janet Gornick and Marcia

Meyers’s model of dual-earner, dual-carer, and its potential flaws and effects. Chapter I describes

the policies for working families that are currently in force in Chile. Chapter II analyzes the current

application of these policies and what are the main issues that in my view need to be solved.

Chapter III describes the main elements of the Bill, its purposes and its content. Chapter IV

compares the Bill with the key features of leave policies that Gornick and Meyers stated in order to

achieve the model. Finally I will conclude providing a broad analysis of the Bill and its potential

consequences.

After this analysis it will be possible to conclude that even though this is a great first step

for Chilean society, there is still a lot to do to really help parents with their family and work

obligations.

II. POLICIES FOR WORKING FAMILIES IN CHILE

The benefits, rights and protections currently available for Chilean workers are: maternity

leave, the maternal privilege, paternity leave, the right to child care, the right to feed children

younger than 2 years old and special leaves. I will also mention the working hours schedule, even

4
Ratified by the Chilean Government on October 14, 1994.
5
Ratified by the Chilean Government on October 14, 1994.
6
Ratified by the Chilean Government on December 7, 1989.
7
Bill No 7526-13, “Proyecto de Ley que Crea el Permiso Postnatal Parental y Modifica el Código del
Trabajo en Materias que indica”, presented to Congress on February 28th, 2011 (Chile), page 1. Available at
http://sil.congreso.cl/pags/index.html

2
though it is “outside” of which is considered within the chapter “protection to maternity” in which it

is possible to find all the other measures.

1. Maternity Leave

Every pregnant working woman has the right to a leave of 6 weeks before labor and 12

weeks afterwards8. These rights can not be waived under any circumstances, implying that the

mother is forbidden to work within that period. These time periods may also be extended because of

an illness related with the pregnancy, in which case the extension is determined by the doctor, and it

is called supplementary leave.

Mothers also have the right to receive a subsidy paid by the state in order to keep their

wages during the leave. This replacement of wages will be in full with a limit of 66 Unidades de

Fomento (UF), which is approximately US$3,0409. As this benefit is completely paid by the state-

and as resources are scarce- this limit was created to reallocate the money within the people who

will need it the most. The supplementary leave though, it is paid by the Health Care institution to

which the mother is affiliated.10

In order to be entitled to that benefit the working mothers must meet several requirements.

The specific requirements are different for dependant workers (those with a labor contract) and

independent worker11 (those without a labor contract).

8
CÓD. TRAB. Article 195.
9
The “Unidad de Fomento” (UF) is an indexation unit used in Chile. The value assigned to the UF on April
28, 2011 is CL$21,700, and on that date US$1 = CL$471.
10
In Chile, every person is affiliated to a health care system that can be public either public (Fonasa) or
private (Isapre). It is mandatory for every dependant worker pay monthly 7% of his/her wages to that
institutions. EMBASSY OF CHILE, Sistema de Salud, (May 4th, 7.18am)
http://www.embassyofchile.se/espanol/salud.htm
11
The dependant worker must have been affiliated to the Social Security System at least 6 months prior to the
beginning of the subsidy and they must have done at least 3 monthly contributions.
The independent worker must have been affiliated to the Social Security System at least 12 months prior to
the beginning of the subsidy and they must have done at least 6 monthly contributions, and they must be on-
time in their contributions. MIN. SEC. GRAL DE GOBIERNO, Red de Protección Social, Preguntas Frecuentes,
REDPROTEGE.COM (Apr. 29,2011, 11.30am),
http://www.redprotege.gov.cl/frmPreguntasFrecuentes.aspx?
idArticulo=370&idseccion=246&idfaq=246&idSeccionPadre=169

3
 2. Maternal Privilege12

This is a benefit that guarantees stability of the working mothers’ job, granting a period in

which the mother cannot be fired without court authorization. The period extends through

pregnancy and finishes 12 months after the end of the maternity leave.

During this period, the work that she was performing before pregnancy could be changed

(during her pregnancy) only if their duties can affect her health or her children’s.

3. Paternity Leave

This is one of the greatest advances in this kind of policies. It is the first legal

acknowledgment to fathers being responsible in the care of children, and it is also the first step that

gets away from the male-breadwinner model. It was implemented by an amendment of the Labor

Code on September, 2005.13

The paternity leave grants fathers the right of a paid leave of 5 days. Those days may be

taken immediately after their child’s birth (without interruptions), or 5 days distributed by his

election within the first month of the child. 14 This leave is paid entirely by the employer, and the

employee is entitled to 100% of his wages during that time.

4. Right to daycare15

This is not clearly a universal right within the Chilean Legislation, because the right is

granted only if certain requirements are satisfied. The obligation to create or finance daycare is

mandatory for all the companies that employ 20 or more female workers (disregarding their age or

marital status). This right is also limited by the age of the children, because it applies only to

children who are less than is two years old.

12
CÓD. TRAB. Article 201.
13
Law No. 20.047, “Creation of Paternity Leave”, Sep. 2nd, 2005, available at
http://www.leychile.cl/Navegar?idNorma=241556
14
CÓD. TRAB. Article 195.
15
CÓD. TRAB. Article 203.

4
 The employer has the option to choose whether he wants to establish a daycare within

his/her facilities (or together with other companies) or to pay directly for the expenses of daycare.

However, this is always financed by employer.

In reality, since this right is subject to the number of female employees, which ultimately

depends on the employer, it would not be accurate to say that in Chile there is a right to daycare.

Actually, it is pretty common that the employer tries to avoid this obligation, for example by hiring

just 19 female employees.16

As a parallel system17, the Chilean Government through JUNJI (Junta Nacional de Jardines

Infantiles) and Fundación Integra, provides daycare for low-income children whose mothers are

working. However, child care programs in Chile face an important coverage problem. Only 28% of

eligible children under six years old attend to a preschool institution. 18

5. Right to feed19

The working mothers legally have one hour throughout the day to feed their children

younger than 2 years old. For the purposes of wages this time would be consider as worked, so it

would be at employer’s expense. This right could be exercise in different ways:

 Anytime during the working day.

 By splitting it in two portions.

 Postponing or advancing the beginning or the end of the working day.

This right would be different also whether or not the worker has to travel. If she has to, the time

of traveling will not be counted.

16
Eduardo Caamaño, “Oportunidades de conciliación de trabajo y vida familiar en la legislación laboral
chilena” XXIX R.D.P.U.C.V 171, 191 (2007).
17
This system is not address directly in the chapter of “Protection to Maternity” within the Labor Code. These
programs are policies which are regulated by the Minister of Education through the JUNJI, which was created
in 1970, and there are focalized on giving daycare to low-income families. JUNTA NACIONAL DE JARDINES
INFANTILES, Preguntas Frecuentes, MIN. DE EDUCACION (May, 4th 2011, 7.32am)
http://www.junji.cl/junjijoomla/index.php?option=com_easyfaq&Itemid=267
18
Teresa Correa, “Achieving gender equity in the labor market: Successes and failures of social policies in
democratic Chile”, 15, LATIN AMERICAN NETWORK INFORMATION CENTER. Available at
http://lanic.utexas.edu/project/etext/llilas/ilassa/2008/
19
CÓD. TRAB. Article 206.

5
 The “Dirección del Trabajo” (Labor Agency) has interpreted this right in a broad sense,

meaning that it could not be understood only as breastfeeding 20.

6. Other Leaves

These last benefits are related with the serious illness of a child: younger than one year old 21

and by the other side younger than 18 years old.

In the first case, the working mother will have the same rights as she was using her

maternity leave, for the period of time that the doctor determines. During this period she will be

entitled to 100% of her wages with the 66 UF limit. If both parents are working, the mother will

have the option to choose who will take it. This is another measure that together with the paternity

leave tries to challenge the traditional view of family, given men opportunities to participate more

actively in care.

In the second case, the minor would have to have a serious accident or a serious or terminal

disease22. Because of that situation, the parent 23 will have a leave equivalent to 10 working days in a

year, and she/he will be able to choose how to distribute them. The hours that the worker used on

this purpose must be recovered by working extra hours, or setting off those days from vacations, or

in any way that the parties establish.

7. Working Hours24

Even though this is a right granted outside of the title “Protection to Maternity”-but within

the labor code-, it is also related with the policies that help balancing work and family duties.

In Chile the working day is limited to 45 hours per week, so every hour that is worked

afterwards would be counted as extraordinary. However, there is an exclusion of this schedule to

CEO’s, managers, people that works without direct supervision, people hired to work from his/her

house or from a place different than the company, among others.

20
Caamaño, supra note 2 at 16.
21
CÓD. TRAB. Article 199.
22
CÓD. TRAB. Article 199 bis. This article was introduced by the Law No.19,505 (July 25th, 1997) available at
http://www.leychile.cl/Navegar?idNorma=74459
23
It could also be taken by fathers.
24
CÓD. TRAB. Article 22.

6
 This amendment was introduced in the Labor Code on January 1st, 2005.

Regarding part-time work, according to the Labor Agency, the Chilean Legislation does not

establish part-time work as an independent type of contract, however, it is possible to negotiate

labor contract with working days no superior than 30 hours25.

III. CURRENT SITUATION

There are several issues regarding the application and the outcomes of these policies. Some

of them were expressly mentioned on the Bill subject of this paper.

 The fertility rate in Chile has been decreasing. Nowadays, Chilean women have 1,9

children, clearly lower than the 2,1 that it is necessary to replace the population 26.

27

 The length of the current maternal leave is not enough. Mothers have to go back to work

when the child is only 12 weeks, affecting several factors that are important for their

healthy development, such as breastfeeding. Only 14% of working mothers keep exclusive

breastfeeding until the children is 6 months old, compare with 55% of the stay-at-home

25
Direccion del Trabajo, ¿Cual es el contracto part-time?, Centro de Consultas Laborales (May 3rd, 2011,
9.45am) http://www.dt.gob.cl/consultas/1613/w3-article-60758.html
26
Bill, supra note 7 at 2.
27
Chart that compares fertility rates of Denmark, Italy, Norway, Spain and Sweden. Evelyn Matthei, Proyecto
de Ley de Extensión del Postnatal, March 23, 2011 CENTRO DE ESTUDIOS PUBLICOS, slide 2,
http://www.cepchile.cl/dms/lang_1/doc_4774.html (April 28, 10.30am)

7
 mothers28. Besides, the Bill states clearly that 6 months of breastfeeding is a necessary

condition for a healthy child.

 A lot of women have been looking to increase their maternal leave using false doctor’s

excuses to take advantage of the leave for sick child’s benefit. According to the Health

Superintendence, 57% of the sick children had Gastroesophageal reflux 29, fact that could be

contrasted with its international rate which is only 0,3% 30. Reviewing other statistics on the

topic, Dussaillant indicates that for all the subsidies that were given in 2007, on average

each child that born that year was sick around 63 days 31.

A social consequence of this situation is that high and middle income mothers are the ones

who have more opportunities to find a doctor that will give the kind of documents useful to

ask for the leave. This situation could be proved by the following graphic called “Rate of

subsidies granted because of serious illness of a child that has less than one year” 32. As it

was previously mentioned, Fonasa (second row) is the governmental institution in charge of

Health Care, and its counterparty in the private sector are called Isapres (the third row).

28
Bill, supra note 7 at 7.
29
Id at 9.
30
Francisca Dussaillant, ¿Más salas cunas o permisos posnatales más largos? Alternativas de política para
apoyar a la maternidad y la primera infancia. 115 CEP, 175, 183-185 (2009)
31
Id. at 184.
32
Marcelo Tokman et al, Subsidios por Incapacidad Laboral 1991-2002: incentivos institucionales,
crecimiento del gasto y una propuesta de racionalización”, 93 CEP 219, 232 (2004).

8
 According to this chart most of the leaves were given through the private system (in 2002 a

6,5% through Isapres, in comparison with 2,7% through Fonasa). Clearly the most fertile

group would be the one with a great probability of having a sick child. Additionally, it is

well known that in low income families the fertility rates tend to increase. So, following

this line of argument, it is possible to conclude that in absence of fraud more low income

families should use this kind of leave, or at least the rate of use within high-income families

would be lower.

 The low rates of women labor participation (42%33) together with the precarious conditions

and the informality of their work make that just one third of the Chilean Children receive

the benefits. As it was discussed, the benefits are linked to be affiliated and contribute to a

health care institution. The following chart34 establishes the percentages of mothers covered

with the benefits, according to their level of income 35. It is clear the regressive character of

33
Matthei, supra note 26, slide 10.
34
Id. citing Encuesta Casen 2009 MIDEPLAN, at 12.
35
The entire country is divided in 5 fifths according to the income per capita of the household.
I: income per capita equal or lower than US$112
II: income per capital equal or lower than US$191
III: income per capital equal or lower than US$298
IV: income per capital equal or lower than US$540
V: income higher than US$540. U.D’CHILE, ¿Qué son los quintiles?, Noticias.
http://www.uchile.cl/uchile.portal?_nfpb=true&_pageLabel=not&url=45243 (Apr. 30, 18.00)

9
 this subsidy, 52% of the money goes to high income families and only 5%-9% for the

poorest ones. These are the families that find more difficulties having and maintaining a

job.

 With the current system of maternal privilege is difficult for working mothers to work with

temporary contracts36. This situation occurs because if a women gets pregnant, after the

term of the contract ends, the women still has the maternal privilege so, the only way to end

their labor relationship is by court authorization, situation that increase costs, which

encourages men hiring.

 Regarding the right to daycare, it is not commonly applied or used, because as it was

already discussed; most employers try to avoid it by hiring less than 20 female workers.

The fact that this is a duty of the employer is really questionable, because creates

disincentives to hire women, increase the costs, and forgets that child caring is not just a

duty of mothers, but also of the fathers and ultimately of the state. 37

Another fact that is important to highlight of this “right to childcare” is about real costs: if

an employer wants to hire 20 employees or more for his/her company, he will analyze the

cost: to hire a man for the minimum wage will cost US$365,18 (monthly), however to hire a

36
Bill, supra note 7, at 10.
37
Caamaño, supra note 2 at 201-202.

10
 woman for the minimum wage will cost US$683,65 (the minimum wage plus the cost of the

daycare).38

If we consider the other option, there is a lack of coverage regarding the public child care

system. Even though this does not explain in full the problem, the system excludes four

categories of women: teenage mothers who wish to complete their schooling instead of

entering the labor market; women working in the informal sector, such as cleaners or

domestic workers; women who are employed, but not by contract, and female who are

looking for a job39.

IV. THE BILL

The Bill was created as a motion of the current President Sebastián Piñera, in order to fulfill

with one of the promises made in his 2009 Presidential Campaign. It was presented to the Congress

on February 28, 2011.

1. Purposes

The purposes of the project as they are stated in the Bill are:

 Guarantee the best care for Chilean Children.

 Allow that more mothers will benefit by the protection of maternity policies.

 Increase the responsibilities40 of both men and women in the care of their children and

facilitate the balance between family and work 41.

It is important for the analysis to know that there is not explicit statement to improve gender

equality within the labor market; in spite of that, it is mentioned that a clear sign must be given in

order to increase men’s participation in child bearing. The same situation occurs regarding women’s

discrimination. This issue is not explicitly mentioned as a purpose; it is only part of the

consequences of the third objective.

38
Matthei, supra note 26 at 6.
39
Correa, supra note 18 at 15.
40
The concept of “co-responsibility” is highly mentioned throughout the entire bill.
41
Bill supra note 7 at 11-14.

11
 There is also a slight mention to the choice of families on this matter: “Even though there is

an agreement about the importance of the family as a fundamental core of society, unfortunately

each time we granted them fewer attributions in order to decide about the care and rearing of their

children”.42

One of the goals that have been highlighted in conferences and the media is that these

changes will be another measure to overcome poverty among women (and their children). The

Labor Minister Evelyn Matthei in her presentation about the Bill in the Public Studies’ Center

explained that “they are trying to use the Nordic Model in order to overcome poverty increasing

women participation in the labor market giving measures to make things easier” 43

According to the survey CASEN 2009 44, in Chile there is an increase of women living in

poverty from 14% to 60%, meaning that almost 1.400.000 women are in this situation, and 60% are

unemployed.

42
Id at 13.
43
Matthei, supra note 26 at 11.
44
MIN. DE PLANIFICACION, Encuesta CASEN 2009, available at http://www.mideplan.gob.cl/casen2009/ (Apr.
26, 2011, 17.00)

12
 In this chart45 is it possible to see that the 48% of women living in the poorest group

(indigentes46) are the breadwinners in their households, this percentage is 43,2% within women

living in poverty and 31,6% within the non-poor.

This study reflects that three factors could explain this phenomenon:

 The weakening of the family, situation that increase the level of vulnerability of mothers

and their children.

 High levels of female unemployment.

 The difficulty of combining work and family obligations, especially because of the rigidity

of the labor market. 47

In the following chart48 is possible to compare numbers between the percentages of women that

are single mothers (downside of the column) and between them those who are participating in the

labor market (upside of the column) split according to levels of income. So, in the 1 st fifth, there is a

25,6% of women, that even though they are “breadwinners” of their homes, they are not

participating in the labor market.

45
Id. at 17.
46
The poverty line is measured by the amount of Money necessary to buy certain goods previously
determined by the authority. The poverty line is divided for rural and urban zones. They will be “indigentes”
if their income is less that US$68,08 in urban zones, and US$52,46 in rural zones. They will be poor if their
income is less than US$136,16 in urban zones and US$91,8 in rural zones. MIN. DE PLANIFICACION, Preguntas
Frecuentes, http://www.mideplan.gob.cl/casen/preguntas_frecuentes.html#3 (Apr. 27, 20.00)
47
CAMARA DE DIPUTADOS, Reportaje Seminario: Feminización de la pobreza, March 7-8, 2011.
http://www.camara.cl/fempob2011/Noticia.aspx?idNoticia=41845 (May 1st, 12:03pm)
48
Matthei, supra note 26 at 3.

13
 2. Content

The Bill will not do any modifications to the current system of maternity leave, because

they are considered “vested labor rights” that must be protected and respected. The main changes

are:

A. New system of parental leave

This is a period that comes right after the maternity leave benefit that could be used by the

mother or the father, and the mother will have the power to choose which one is going to take the

leave. The parental leave will be of 12 weeks, and 6 of them could be used by the father in the

beginning of the 6th week.

During this period the mother (or the father) will receive a subsidy that will cover 100% of

her wages with a limit of 30 UF = US$ 1,387. As it could be notice, there is approximately a 50%

decrease on the wage’s cap. They argue that: “[e]ven though it would be ideal that this new subsidy

finances in full the wages of all working mothers, in practice this is not possible. There are not

enough resources, and they must be distributed in the best way possible, avoiding to increase its

regressive character”.49

49
Bill, supra note 7 at 15.

14
 According to Gornick and Meyers: “[h]igh earnings caps results in a progressive benefit

structure and restrain program expenditures while avoiding substantial losses in economic security

for most mothers and their families” 50. The issue here is to balance the scarcity of resources, and the

opportunity of giving the benefit to all mothers, even more if the subsidies are paid by the

Government.

Working mothers would be able to do part-time work on this period if their wage is not

completely covered by the subsidy. However, the amount of money that she will receive because of

the subsidy and the part-time work’s wage, must not be superior to the average of the last three

remunerations.

The reason given to authorize part-time work-according to the Labor Minister Evelyn

Matthei-was to give the opportunity to women that have a more qualified and specialized jobs to

keep their position and contacts in their jobs, as a way of not loosing “chances” of promotion just

because they had a child.51

B. Illness of a child younger than one year

This leave could be used after the maternity and parental leaves have been used. Knowing

that there are different types of diseases that affect infants, there will be a distinction between

serious and extremely serious illness.

Extremely serious diseases will keep the system of subsidies that was described in Chapter

2 section 6. For serious illnesses the subsidy will have a limit of 30 UF with a staggered payment

that will be determined according to the wages of the mother.

In order to avoid fraud and the creation of false reports by the doctors, they have the legal

duty of giving a justified and detailed report with the reasons why this leave should be granted.

C. Maternal Privilege

50
JANET C. GORNICK
& MARCIA K. MEYERS, FAMILIES THAT WORK, 123 (Russell Sage Found. 1st ed. 2003).
51
Evelyn Matthei, Proyecto de Ley de Extensión del Postnatal, March 23, 2011 CENTRO DE ESTUDIOS
PUBLICOS, Audio available at http://www.cepchile.cl/dms/lang_1/doc_4774.html (April 30, 2011 19.00)

15
 Acknowledging the current situation of female labor participation, this benefit will be

maintain but with some modifications. The benefit will not be extended as a consequence of the

parental leave’s creation, it will still begin with pregnancy, but it will end after a year of the child’s

birth.

Besides, the benefit will coincide with the duration of the temporary contract in order to

eliminate the requirement of court authorization to end the labor relationship.

D. Increase in coverage

There is a change in the requirements to receive the subsidy 52, with the purpose of including

the poorest of the country, and to include people working part-time, or with a fixed-term contract.

3. Reactions to the Bill.

Even though the process of the Bill in the Congress has just started, several reactions have

been communicated by different politicians through the media. The Concertación53 argue that this

bill has “fine print” because it is diminishing the maternal privilege in 3 months, and this would

increase layoffs among women.54

The Unions of the public sector (the ANEF), also rejected the bill for the same reason (the

same argument was presented by the Unions of Public Health workers CONFUSAM 55), adding that

they want to increase parental leave’s limit of 30 UF to 66 UF which is the standard for the

maternity leave.56

52
The requirements are:
1. Being in a household that is part of the 20% poorest of the population.
2. 12 months of affiliation before the pregnancy.
3. 8 contributions (that could be continuous or discontinuous) within 24 months before pregnancy.
4. Last contribution was because of a fixed-term contract.
53
This is nowadays the opposition, and it’s a coalition of center-left parties.
54
RADIO U.CHILE, Polémica genera reducción de fuero maternal en proyecto de postnatal del Ejecutivo
(March 17, 2011) Noticias (May 1st, 2011, 12.00) http://radio.uchile.cl/noticias/106798/
55
BIO BIO CHILE, Confusam llama a rechazar proyecto de postnatal y detalla puntos en desacuerdo (Apr. 11,
2011) (May 1st, 13.20) http://www.biobiochile.cl/2011/04/11/confusam-llama-a-rechazar-proyecto-de-
postnatal-y-detalla-puntos-en-desacuerdo.shtml
56
RADIO U.CHILE, ANEF pide a los parlamentarios rechazar proyecto sobre postnatal (Apr. 20,2011) Noticias
(May 1st, 2011, 11.49am)
http://radio.uchile.cl/noticias/111358/

16
 Other opinions in the media have argue that this bill was part of several social policies that

appeared quickly after the decrease in the President’s population support (surveys showed 50% of

rejection) trying to give more credibility to the Government. 57

V. ANALYSIS

In this chapter I will analyze the Bill from two perspectives: making a comparison of the

Bill with the requirements that Gornick and Meyers described as features of family leave policies,

and afterwards I will analyze the Bill from a broader perspective, trying to address its potential

effects in the Chilean Society.

1. Comparison with Gornick and Meyers features of leave policies

On this part, the bill will be analyzed and compare with the requirements described by

Gornick and Mayers in their chapter “Ensuring Time to Care” included in the book “Families that

Work”58.

A. Maternity Leave policies grant nearly all employed mothers job security and wage

replacement around the time of childbirth.

One of the main obstacles on this matter is that the benefit is related with formal work, so

working mothers will have to fulfill several requirements (mentioned in Chapter II Part 1) of

affiliation and contributions in order to be entitled to paid-leave. But, what happen with those

mothers that have less time affiliated or have fewer contributions? Besides, what will happen with

those mothers working in the informal sector? In 2003, 46% of women worked in the informal

sector, while 34% of men did.59

57
Blanca Arthur, El riesgo de forzar una agenda social distante de sus principios, DIARIO FINANCIERO (Apr.
30,2011) (Apr. 30, 9.45am) http://www.df.cl/el-riesgo-de-forzar-una-agenda-social-distante-de-sus-
principios/prontus_df/2011-04-28/214145.html
58
Gornick and Meyers, supra note 50 at 121.
59
Correa, supra note 18 at 6.

17
 According to Dussaillant60, the proposed changes (described Chapter IV Part 2 Section D)

will not be useful to extend the benefits to those women that are not receiving the subsidy today.

The explanation that she offers is that the amendments on the coverage only imply the last 5 th of the

population, adding the other requirements this measure will only benefit 2% of the population,

being far away of changing the 64% 61of women without the benefit.

The benefit of maternity privilege grants job security. The question will be how much time

it is necessary to achieve that goal? Even though the discussion in the Congress has just started

there are two main opinions on this: the left side (the opposition) argues that the proposal of

shortening the maternal privilege is discriminatory against women, and it is also violating the vested

right that the maternal privilege will end one year after the leave ends (in comparison with one year

after the child’s birth).

The right side (those who presented the bill) argues that to increase the current privilege is

excessive, and its extension will be harmful for women’s employment, because as women are

protected from laid-offs, this situation decreases their productivity, especially within low-wage jobs.

They also argue that more than one or two months after returning to work is not useful. This

extended benefit also creates a burden on the employer that at the end result in raising the cost of

hiring women62.

This feature is clearly not fulfilled by the potential changes on the policy, especially

regarding coverage. It is important to find a way to reach those low-income mothers that even when

working are not receiving any benefit.

B. Maternity leaves are supplemented by parental leaves that provide both mother’s and

father’s paid leave during preschool years.

This Bill creates parental leave as a new policy within the Chilean Society. Even though the

leave is paid, the established cap for the subsidy could be an issue within middle and high income
60
Francisca Dussaillant, Comentarios al Proyecto de Ley sobre Postnatal, March 23, 2011 CENTRO DE
ESTUDIOS PUBLICOS, slide 21. Available at http://www.cepchile.cl/dms/lang_1/doc_4774.html
61
Matthei, supra note 27 at 13.
62
Dussaillant, supra note 60 at 19 and audio presentation available in the same website.

18
families, even with the solution of part-time work, because the labor market it is not used to work

with part-time employment, especially within high qualified jobs. However, it is understandable

that as the benefit is financed in full by the State, some limits are established.

In comparison with Western Countries, the Chilean Parental Leave is far away from

granting some period of care during the preschool years, but I believe that changes on this matter

must be taken carefully, because just the fact of giving the opportunity to take a leave by the father

is a huge change within the Chilean culture in which the gender roles are clearly defined in a

traditional way: male breadwinner, female care provider.

C. Mothers and Fathers should be entitled to some time off with pay, to attend to short-term

and unpredictable needs that arise during their children’s lives.

These are the measures classified in this paper as “other leaves”: the leave for illness of a

child younger than one and the leave in case of a serious illness of a child younger than 18.

The main concern about the first leave is whether or not the mechanisms that the Bill

establishes to avoid fraud will work. The mechanism of reducing the payment between serious and

extremely serious disease seems effective to avoid fraud, especially if we consider the regressive

approach of the subsidy.

The distinction between “serious” and “extremely serious” seems odd, and it will depend on

the list that the Labor Minister will create, situation that could be arbitrary in some cases.

Besides, the requirement that the doctor should issue a detailed and justified report does not

give enough certainty either. Those women who ask for a false certificate could still ask for a doctor

that would be able to issue the needed document looking for a disease that fits within the

framework.

One of the arguments used to change this kind of leaves was that this measures create

uncertainty of when the women was going to return to work 63, situation that places an additional

63
Id.

19
burden on women. These circumstances will not change unless a clear system of control would be

established.

Regarding the leave for a sick child under 18 years old, it does not fulfill with the ideal

because it is unpaid. I consider that this situation does not help to balance work and family

obligations, because as a parent, I am well aware that there are some situations that will not qualify

as “an emergency” that still will require the attention of one of the parents.

D. Leave policies promote gender equality by securing fathers’ rights and benefits

encouraging fathers’ usage.

The main question here is: are fathers going to take the leave? One of the major discussions,

according to the Labor Minister Evelyn Matthei when they were creating the leave, was the

opposition by men to create this kind of leave.

In order to answer this question, it is necessary to get into the Chilean culture. Men that

answered the International Social Survey Program (2002) 64 draw a line between family life and paid

work and considered domestic chores and childbearing duties to hinder their ability to work outside

the home. A man’s role as a provider also defines his position of authority within the family. In this

situation, a man generally perceives women’s remunerated work to be a threat to the fulfillment of

domestic duties, particularly childrearing and childcare 65.

So, it is possible to analyze that the Chilean society has strong values regarding the male-

breadwinner model. That is the reason why the paternity leave is too short; it was created that way

to encourage fathers to take it.

There are some structural issues that will discourage fathers to take the leave that must be

addressed during the Bill’s discussion in Congress.

64
Measures cultural patterns in the population, covering only three countries: Brazil, Chile and Mexico. Dante
Contreras & Gonzalo Plaza, Cultural Factors in Women’s Labor Force Partcipation in Chile, 16(2) FEM.
ECON. 27, 29 (2010).
65
Id at 33.

20
  This modification seems to be too radical on this matter. As I mentioned before Chile is a

“machista”66 society that is still accommodating to the paternity leave, and trying to move

forward to promote gender equality. For that reason I believe the current redaction of the

Bill: “6 weeks or nothing”, is not a good idea in order to encourage father’s participation. It

would be better to create a more flexible system: from 1 to 6 weeks. With the current

situation, females are going to take the entire 12 weeks without real changes.

 The other issue that will discourage fathers from taken the leave is that the subsidy is

calculated from women’s remuneration. According to the study made by Hugo Ñopo 67,

during the period 1992-2003 regarding hourly wages, males have earned between 22 and

35% more than females.

66
Machismo: Exaggerated pride in masculinity, perceived as power, often coupled with a minimal sense of
responsibility and disregard of consequences. In machismo there is supreme valuation of characteristics
culturally associated with the masculine and a denigration of characteristics associated with the feminine. It
has for centuries been a strong current in Latin American politics and society. THE FREE DICTIONARY (May
2nd, 2011, 23.30) http://encyclopedia2.thefreedictionary.com/Machista
67
Hugo Ñopo, The Gender Wage Gap in Chile: 1992-2003 from a Matching Comparisons Perspective,
INTER. DEV. BANK 21 and 41 (May 2006). Available at
http://www.seminariogenero.microdatos.cl/docs/nopo.pdf

21
 So, those fathers who will want to take the leave must be able to afford a reduction in their

wages, situation that it is not possible within low-income families. Among high income

families the issue will be the limit of 30 UF, even with the possibility of working part-time

during that period.

The additional cost for the state to use as a reference men’s wages rather than women is

approximately UF1,35 (US$62,19) per child. This cost is not significant for the State,

considering that the changes implemented by the Bill will cost on average 76UF

(US$3,501) per child. Besides, the using rate of 25% is highly improbable 68.

It is important not to forget how the remaining values of the society could affect

perceptions: maybe fathers will not take the leave because they will be afraid of the

potential effects with their employers e.g. that they are not engaged enough to the company.

 It has been argued that the privilege for fathers that take the leave is too short (12 weeks),

and that could affect also their interest in taking the leave.

According to Gornick and Meyers 69, several steps must be taken to increase father’s use of

leave benefits:

 High-wage replacement rates are the most straightforward instrument. As it was already

discuss the Bill does not fulfill with this prong.

 Non-transferable rights can be created by granting individual rights to each parent for his or

her own period of leave or by reserving for parents some portion of family-based

entitlement.

 Public-education campaigns may reduce cultural and institutional resistance to leave taking

by fathers by altering public and private discourse about father’s engagement in caregiving.

It is clear that Chile has a long way to achieve father’s participation; however it is a good

way to start.

68
Dussaillant, supra note 60 at 11-12.
69
Gornick and Meyers, supra note 50 at 134.

22
E. Leave Financing should be designed to distribute the cost of time for caring across society and to

minimize the burden placed on individual employees.

In this situation, Chile has a system that is entirely paid by the Government, could be

consider similar to the Nordic Countries 70, with the difference that employers do not have to pay

either maternity leave or parental leave.

There are two issues on this topic: (i) the paternity leave and (ii) the right to feed. Even

though paternity leave is pretty short is entirely paid by the employer, so it could be argued as

another reason to discourage fathers to take it. The right to feed could also be seen as a burden to

employers, because they will have 5 hours a week less of work from a female worker rather than a

man. If we add all the other benefits with this one it could help to increase discrimination among

women, because it supposes that women must be in charge of feeding their children (even after the

breastfeeding period is over).

2. A broader view of the policies.

In this point, the idea is to analyze what are the major flaws within the policies that help

workers to balance family and work obligations.

One of the first issues that came up during the comparison was the fact that these policies

are not viewed yet as a systematic set of policies to help workers; they are still linked to

“maternity”.

This situation does not help to send a strong message to the society that the model of male-

breadwinner should change, in order to achieve gender equality. Even though they state that they

want to “increase the responsibility of both parents in the care of the children”, the consequences

their structure generates are far away from this purpose.

This lack of a systematic view could be find also in the fact that the Bill does not modified

the article related with the right to daycare, and does not deal with issues like part-time work and

flexible working days either, which would generate unexpected results with these policies.

70
Id at 142.

23
 Another issue that must be address is discrimination against women. One of the solutions

could be to create a stronger and clear set of antidiscrimination policies. Through this paper several

situations have been discussed e.g. women’s wages are lower than men, women’s participation in

the labor market. These measures must consider the culture and the setting were they are going to

be applied.

The issue of gender inequality in Chile is not just regarding the labor market, it is also in the

negotiation of care work at home. Gender equality policies can thus increase income equality

among parents, which can equalize bargaining power when negotiating divisions of labor at home. 71

So, it is not just creating a system to equalize wages (as they are trying to do with the Law

20,348-June 19th, 2009-that states the right to equal wages between men and women) is a complete

change in mentality, which could not be achieved with this Bill. The question is do laws change

behaviors? Or behaviors change the law? Cameron Macdonald concludes-when criticizing Gornick

and Meyers Model- that institutional change cannot be sufficiently powerful to alleviate the fear of

being an inadequate mother that plagues so many women. 72

Even though it was not explicitly established as a purpose, one of the main goals of this Bill

according with the Labor Ministry is to overcome “female poverty”.

One of the recommendations of the United Nations for achieving poverty reduction is to

increase equal access to employment through the extension of parental leave policies 73. And this

recommendation must be linked with the idea that paid leaves of several months’ strengthen

women’s labor market attachment in a variety of ways, and paid leave raises women’s employment-

to-population ratios by 3 to 4 percent 74. If women from the lowers fifth of the population are able to

71
Kathrin Zippel, The Missing Link for Promoting Gender Equality: Family-Work & Antidiscrimination
Policies. Version December 27, 2007, page 4.
72
Janet Gornick and Marcia Meyers, Gender Equality. Transforming Family Divisions of Labor. VI THE REAL
UTOPIAS PROJECT, 435, 441.
73
Verena Schmidt, Equal Access to Full Employment and Decent Work as a Poverty Reduction Strategy, U.N.
DIV. FOR THE ADVANC. OF WOMEN (May, 2nd, 2011)
http://www.un.org/womenwatch/daw/egm/impact_bdpfa/EP2%20-%20Schmidt_Final%20%5Bconsolidated
%5D.pdf
74
Gornick and Meyers, supra note 50 at 240

24
participate into the labor force, there are more probabilities that their family could overcome

poverty.

Child care provisioning should support women’s employment and reduce poverty rates

since women are not expected to juggle caregiving responsibilities with employment 75. If they want

to achieve this goal, and improvement in the coverage of childcare must be done.

There is another aspect that must be consider regarding women’s labor participation, and it

is cultural factors that decrease women’s labor participation especially among low income families.

For example: their partners behavior’s and their relationship seems to play a key role in women’s

participation in the labor market, others are cultural models of the family and men and women’s

social roles; the presence of absence of a working mother, among others.

Even though parental leave could be useful to overcome poverty, the experience of other

countries shows that this policy was not working alone. If we look the experience of Sweden,

“much of the success in reducing poverty was due to Sweden’s tax and transfer systems and that the

combination of high employment and low wage inequality was associated with factors that directly

or indirectly twisted labor demand in favor of less-skilled workers. We have also advanced an

interpretation of the Swedish experience that highlights the compression of hours worked on the

demand for less-skilled workers”76.

V. CONCLUSION

One of the main goals of this paper was to compare the new system that the Bill would

create with Gornick and Meyers dual-earner, dual-carer Model. This model presents a policy

package that could help parents (not just mothers) to balance work and family obligations. As it was

analyzed, the Bill is not a systematic improvement of the policies for working families, because

75
Joya Misra, et al, Work-Family Policies in Poverty for Partnered and Single Women in Europe and North
America. 21 GEN.& SOC. 804, 816 (2007).
76
Anders Bjorklund, Richard B. Freeman, Generating Equality and Eliminating Poverty, the Swedish Way, in
RICHARD B. FREEMAN ET AL, THE WELFARE STATE IN TRANSITION: REFORMING THE SWEDISH MODEL, 33
(Richard B. Freeman et al, 1997)

25
modifies just one part of several areas that could promote effectively its purpose of “co-

responsibility”, such us child care, working hours and part-time work.

Child care has still issues of coverage, 45 hours are still too much (In most OECD countries

the standard working week is around 40 hours but many people work longer 77), and part-time work

is not consider as a real solution.

Besides, even though they mentioned several times the concept “co-responsibility” they

never address directly gender inequality not only in the labor market, but also within the un-paid

work.

In specific, even though they are trying to expand the scope of work-family policies to

fathers (even though these policies are still within the chapter of “protection to maternity”), it is

possible to find a lot of flaws that will discourage fathers from taking the leave.

Additionally, they are still a lot of issues regarding women’s participation in the labor

market-lower participation, lower wages, discrimination and poverty- that must be analyzed as a

whole, trying to take into account all the potential factors that are creating the situation, not only the

economic, but also the cultural and structural ones.

In conclusion, even when this is a first step, more changes within the policies and the

society must to happen in order to achieve the dual-earner, dual-carer model.

77
ORGANIZATION FOR ECONOMIC COOPERATION AND DEVELOPMENT, Working Hours (May 4th, 2011,
10.18am) http://www.oecd.org/dataoecd/46/17/37964450.pdf

26
 BIBLIOGRAPHY

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28