PARENTING AND WORK

A comparative study between Sweden and Macedonia

Author:Katerina Mirkoska

Bachelor Thesis in Labour Law

HARGH16

[Fall 2015]

Supervisor:

Vincenzo Pietrogiovanni

Table of contents1 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

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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)

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AbstractThe 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.

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SammanfattningDe 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.

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1 IntroductionDuring 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 states5, 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

1 For instance; Directive 76/207/EEC, Directive 92/85/EEC, Directive 2006/54/EC.2 Some examples: Case C-177/88, Case C-109/2000, Case C-284/02.3 Conaghan et al, Labour law, work and family, 2005, p. 3.4 Ibid, p 45 European Commission, Report on equality between women and men 2014, p 45-53. http://ec.europa.eu/justice/gender-equality/files/annual_reports/150304_annual_report_2014_web_en.pdf 2015-12-136 Some examples: European Commission. European Neighbourhood Policy and Enlargement. Serbia. http://ec.europa.eu/enlargement/countries/detailed-country-information/serbia/index_en.htm, European Commission. European Neighbourhood Policy and Enlargement. Turkey. http://ec.europa.eu/enlargement/countries/detailed-country-information/turkey/index_en.htm, European Commission. European Neighbourhood Policy and Enlargement, Bosnia and Herzegovina. http://ec.europa.eu/enlargement/countries/detailed-country-information/bosnia-herzegovina/index_en.htm 2015-12-10

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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 questionsThe 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?

7 Social Insurance Report 2009:1, How long does fathers parental leave matter? P. 9. https://www.forsakringskassan.se/wps/wcm/connect/0c755c6e-0868-465b-ae47-dc2073979033/socialforsakringsrapport_2009_1.pdf?MOD=AJPERES 2015-12-14.8 I’m mostly referring to the Balkan wars and subsequent problems like corruption. See more; European Commission, The former Yugoslav Republic of Macedonia, Progress Report. P. 11-12. http://ec.europa.eu/enlargement/pdf/key_documents/2014/20141008-the-former-yugoslav-republic-of-macedonia-progress-report_en.pdf 2015-12-14.

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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 MethodologyThe 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

9 Zetterström, Juridiken och dess arbetssätt, 2012, p. 56.10 Directive 2010/18/EU.11 Benitz, et al, Finna rätt, 2012, p. 29.

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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

199518 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

12 Ibid.13 Ibid, p. 199.14 Bogdan, Komparativ rättskunskap, 2012, p. 28.15 Ibid, p. 27-28.16 Ibid, p. 31.17 Ibid, p. 37.18 European Union, About the EU. Sweden. http://europa.eu/about-eu/countries/member-countries/sweden/index_en.htm 2015-12-1519 Bogdan, Komparativ rättskunskap, 2012, p. 59.

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But in order to understand the purpose of the EU and how the EU-laws are functioning it is

crucial to look at its methodology. Since the entry into force of the Treaty of Lisbon20 a more

uniform EU-law has emerged. The main sources of law according to the EU are the primary

law (the fundamental Treaties) and the secondary legislation (regulations, directives,

decisions, opinions and recommendations) which may differ in terms of binding force.

Regulations, directives and primary rulings from CJEU are all binding acts in accordance to

article 288 TFEU.21 These legislations have precedence over national legislation.22 Directives

from the EU function as factors where the purpose is to create a future that is characterized by

unity and harmonization for the member states.23 They are also a lot freer to implement during

a certain amount of time in comparison with the stricter regulations which have direct effect

and are directly binding.24 This has led to a more comprehensive role for the CJEU.25 The

need of interplay and dialogue between the national and European instances is getting more

important and crucial for the survival of the EU.26 A lot of the legislation gives only extremely

low guidance for the interpreter leading to the grand use of case-law. The rulings are guiding

the way for future interpretations in particular questions.27 It is also letting the CJEU interpret

the regulations in a way that will be favourable for the development of the EU law,

accordingly to the effet utile principle.28 The CJEU is not formally bound by its own

precedents29 to make sure the dynamic nature of the court continues to exist and in accordance

with that make it easier to adapt laws associated to changes in the society.30

With this in mind, directives that have been existing for quite some time and already have

been widely interpreted in the CJEU, are not as frequently treated now, in comparison with

when the laws were new. Consequently, in cases regarding parental leave, well interpreted

doubts are already cleared out and work normative when doubt occurs. In the Swedish

legislation and history regarding the parental leave law and discrimination for instance, case

laws can be found. Some of them work as precedential like AD 2013:18,31 AD 2014:19,32 and

20 TFEU.21 Hettne et al, Eu-rättslig metod, 2011, p. 42.22 Ibid, p. 46.23 Samuelsson, Tolkning och tillämpning, 2012, p. 38.24 Ibid, p. 37.25 Hettne et al, Eu-rättslig metod, 2011, p. 39.26 Ibid, p. 34.27 See 19.1 TFEU, for instance.28 Hettne et al, Eu-rättslig metod, 2011, p. 49.29 Ibid, p. 51.30 Ibid, p. 60.31 AD 2013 no 18.32 AD 2014 no 19.

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AD 2015:12.33 Others may still be of value for instance when need to invoke back up for a

current case. Unfortunately, case laws in Macedonia are currently not possible to examine

since they are impossible to get a hold of.34 This is a part of the analysis where information

will be lacking. It is, of course of great interest to examine how a candidate country is judging

in cases where new legislation is supposed to be interpreted. It is also worth discussing the

fact that an individual (or its representative) cannot invoke a complaint to the CJEU if not

being treated according to the implemented EU-laws, in the national court.

Even other sources of law are hard to get a hold of in Macedonia. For instance, one can only

get access to the websites that contain the existing laws in their entirety, by paying a fee. Also

no literature that works as comprehensive commentaries to the specific laws can be found in

the same sense as in Sweden. . This complicates the understandings of the laws, leaving it to

the reader to interpret, which may result in lacking knowledge about the legislation.

The base for this thesis are the directives in their entirety together with the national legislation

where the directives have been implemented. I applicable law will be studied and also sources

like propositions and former directives will be looked into in order to gain further

understanding for the current legislation. Information from the European Commission is of

great importance for this analysis since the information regarding Macedonia and its progress

to membership is well explained. Except from the literature that processes the subject of EU

and social policy I will also use literature that problematizes the laws from the EU regarding

family and equality questions. The way the legislation affects the labour market for (in

particular) women is of value in these texts. Cases from the CJEU and Swedish case laws will

be studied but only referred to in this text. The precedential cases mentioned can be

considered as well established and hence no focus will be on explaining their content.

1.3 DelimitationThe legislation regarding parental leave is widespread and states a lot of data connected to the

parental leave after the birth of a child. Legislation regarding parental leave pay, disabled

children, multiple births and adoption will not be investigated further in this thesis. Those

areas are all branches from the same field as the parental leave and come with some special

33 Sveriges Domstolar. Vägledande avgöranden. AD 2015 no 12. http://www.rattsinfosok.dom.se/lagrummet/index.jsp 2015-12-15.34 A homepage is being made where it will be possible to search for cases by keywords. The courts in Macedonia do not have the possibility to hand out case laws, hence they are impossible to read.

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exceptions and sometimes further rights. The aim of this thesis is not to analyse what

legislation applies for parents that neither work in more than one country nor the guidance

existing regarding the need of implementing child care services and childcare facilities.35 Also

there will be no focus on the rights to take leave when the child is ill.36 Considering the need

for flexible working hours is also one part that will not be investigated further, even if it will

be mentioned shortly.37 There are some protecting legislation regarding the expectant mother

to leave work before the baby is born in order to keep her and the baby’s health out of

unnecessary risk. In Sweden, the mother can have the right to maternity allowance38 and

similar legislation exists in Macedonia regarding the right for the mother to take leave before

the child is born.39 None of these laws will be investigated further. Due to the size of this

thesis questions regarding legislation for single parents or parents that are not employees will

not be answered. The reason for not including these branches of the parental protection laws

is mainly due to their minimal difference from the laws compared in this thesis. Generally,

additional leave and extra protection is granted the parents in question. So in order to be

distinct I chose to not obstruct the text by stating all the exceptions that these laws contain.

The discussion about gender neutral legislation regarding parents of same sex will not be

looked into. It is stated in the Macedonian laws that marriage is between one man and one

woman.40 The parental leave laws are not formulated in a gender neutral way, they are written

in terms of mothers and fathers. Therefore it is safe to claim that equality regarding non-

heterosexual parents does not exist when comparing them with heterosexual ones. In Sweden

the legislation is using the term parent which indicates that the legislation is making no

difference of the gender of the parent. In the case of Sweden, same-sex couples have the same

rights as heterosexual couples to marry and adopt.41 Since this is not the case in Macedonia

the discussion regarding these questions are inutile. It is stated in the Macedonian laws that

there shall be no discrimination on bases of sexual orientation or other personal circumstances

but that is about how far the equality goes regarding sexual orientation.42 These problems are

important and the non-equality is an issue worth discussion but it is a different one than the

one I am going to investigate which is why I will not analyse it further in this text.35 ETUC, Joint letter from the European Social Partners on childcare. https://www.etuc.org/sites/www.etuc.org/files/Final_draft_joint_letter_childcare_04.07.08_1.pdf 2015-12-01.36 Directive 2010/18/EU Clause 7 (1, 2).37 Directive 2010/18/EU General considerations (13, 21).38 Socialförsäkringsbalk (2010:110), Chapter 10.39 Macedonian Law on Labour Relations, Article 25 (4), Article 42 (3, 4, 5), Article 165 (2). 40 Macedonian Law on Prevention and Protection Against Discrimination Article 5 (5), Article 14 (6). 41 Äktenskapsbalken (1987:230) 1 kap 1 §, Föräldrabalken (1949:381) Kap 4.42 Macedonian Law on Labour Relations, Article 6.

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1.4 DispositionThe structure of this thesis is separated into different section. Firstly the legal framework from

the EU is being presented, where summaries of the directives in question are being explained.

Also information regarding conditions for membership is stated in this section. The next part

outlines the Swedish legal framework, followed by a chapter about the Macedonian one. In

the end, I will analyse the information from these sections in a comparative analysis where I

also will problematize and discuss the current legislation and its effect on the labour market.

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2 The EU legal frameworkSince the process of Europeanisation – meant as the way to access and get the European

Union deeply influenced by the each national cultural and legal context – the interest of

comparing the legislation of two very different countries like Sweden and Macedonia

increases. This illusion, that EU and its member states are one big family is easily ruptured

when starting to compare the specific legislations in each country. The candidate countries

that still do not achieve what is asked them from the EU, are trying to approach the EU

legislation in the way that their governments decides. This is maybe easier said than done

since a lot of the candidate countries (which are all in the South of Europe) have a much

crueller recent history than, for instance, the Scandinavian ones. The choice to compare the

parental protection legislation with a candidate country is of interest since it is preparing for

membership by changing its laws in accordance with the EU regulations. With this I hope to

shed some light over how the legislation can differ in a, hopefully soon, new member country

compared with Sweden. The importance of social security for a society can, in some ways, be

found in its laws. Maybe there can be some understanding gained for both countries residents

of how the law can affect the individual depending on where you happened to be born.

2.1 Conditions for membershipWhen a country is ready according to the EU, it becomes an official candidate for

membership and moves on to formal membership negotiations. This is a process where the

candidate country is adopting established EU law and prepares to be in a position to properly

apply and enforce all the accession criteria.43 EU approves new member countries when the

specific country in question can certify that it is able to achieve the standards set up for new

member states. These consist of complying with all the EU’s standards and rules, having the

consent of the EU institutions and EU member states and having the consent in its own

country’s citizens – either by referendum or by approval through the national parliament.44

The main criterion for membership is stated in the Treaty of the European Union, which is

respecting the democratic values of the EU and being committed to promote these values.

43 European Commission. European Neighbourhood policy. Steps towards joining. http://ec.europa.eu/enlargement/policy/steps-towards-joining/index_en.htm 2015-11-27.44 Ibid.

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Some initial criteria were defined at the European Council in Copenhagen (Copenhagen

Criteria) in 199345 and countries that wish to join must satisfy these criteria:

- Political criteria: stability of institutions guaranteeing democracy, the rule of

law, human rights and respect for and protection of minorities

- Economic criteria: a functioning market economy and the capacity to cope with

competition and market forces

- Administrative and institutional capacity to effectively implement the acquis

and ability to take on the obligations of membership.46

Throughout the negotiations, the Commission supervises the progress of the candidate

country; making sure it is meeting its commitments and giving some guidance. The follow-

ups are mainly stated in reports and strategy papers.47 It is the European Commission that

decides when a candidate country is ready to be admitted as a new member of the EU, by

monitoring its process.48

2.2 Directives from the EURegarding the development of EU social policy it is quite clear that there was grand

reluctance by the member states and the Union itself to implement regulations that would

improve workers conditions. The initial goal was to have a free market which was based on

economic gains. The social policy, and labour law in particular, seemed to lie at the heart of

national sovereignty, and in some sense, used as a way of preserving the integrity of the own

national system.49 The social policy changed in the 1970s when the focus was on improving

working conditions and aiming at better employment in the EU. This lead to a remarkably

increase of new legislation, only to stagnate in the 1980s.50 Later on, the social policy

developed in accordance with the principle that Europe existed for its citizens and not the

45 European Parliament. Precidency Conclusion. Copenhagen European Council 21-21 June 1993. http://www.europarl.europa.eu/enlargement/ec/pdf/cop_en.pdf 2015-11-26.46 European Commission. European Neighborhood Policy and Enlargement. Accession Criteria. http://ec.europa.eu/enlargement/policy/glossary/terms/accession-criteria_en.htm 2015-11-26.47 European Commission. European Neighborhood Policy and Enlargement. Conditions for membership. http://ec.europa.eu/enlargement/policy/conditions-membership/index_en.htm 2015-11-26.48 European Commission. Enlargement of the European Union. P. 12-13. http://ec.europa.eu/enlargement/pdf/publication/2014/140902_dgelarg_brochure_en.pdf 49 Barnard, Eu Employment Law. 2012, p. 4-7.50 Ibid, p. 9-10.

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other way around and that the social welfare could not be of responsibility of the individual,

but rather a collective activity.51

The main body of EU employment law has been taken primarily from directives.52 They allow

flexibility in different ways for the member states. The minimum standards stated in the

directives, leaves the national legislators to implement them as they prefer and also improving

them, if they like.53 The aim is to gradually build up these standards in a pragmatic and

flexible manner.54

Historically, the limitation for women to participate fully in paid employment, origins in them

taking primary responsibility for child care. It has therefore been of importance for the

European Commission to strive for equality and “family friendly” policies.55 It is stated that

everyone shall have the right to protection for dismissal for reasons connected with maternity

and also the right to paid maternity- and parental leave.56

2.2.1 Parental Leave DirectiveThe directive 96/34/EC – on the framework agreement on parental leave concluded by

UNICE, CEEP and the ETUC – aimed to act like a basis with minimum requirements for the

member states. The directive enables men and women to reconcile their occupational and

family obligations and thereby facilitate the working and family life. The directive also stated

assertions regarding time off work in cases of force majeure for instance when the child is

sick and in need of care. Even if the directive was promoting equal treatment between men

and women it did not explain how this shall be achieved.

The regulation in force is actually the directive 2010/18/EU – implementing the revised

Framework Agreement on parental leave concluded by BUSINESSEUROPE, UEAPME and

ETUC and repealing Directive 96/34/EC. Here it is stated that the former made a great

statement for working parents all over Europe and that the new directive comes with

improvements. This emerged from the non-satisfaction of the European Commission which

stated (about directive 96/34/EC) it:

51 Barnard, Eu Employment Law. 2012, p. 11-12.52 Ibid, p. 47.53 Ibid, p. 61.54 Ibid, p. 62.55 Ibid, p. 401.56 European Parliament. EU Charter of Fundamental Rights. Article 33. http://www.europarl.europa.eu/charter/pdf/text_en.pdf

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“Cannot sufficiently be achieved by the member states and can therefore be better

achieved at Union level.”57

In article 2 of the directive it is stated that member states shall determine penalties and that

these shall be effective and dissuasive when not enacting regulations in consonance with the

directive.58 The tone is harsher and aims to fulfil the previous goals.59 The directive is written,

as most directives, very vaguely, leaving a big responsibility for the member state to interpret

and implement the directive correctly. The different ways of interpretations is shown in the

way that the European countries have implemented the directive in their national legislation.60

The directive refers to gained contribution to achieve gender equality and doing so by shared

responsibilities for care of the children between men and women.61 The parental leave shall be

granted for at least a period of four months and should in principle be provided on a non-

transferable basis.62 At the end of the parental leave the worker has the right to return to the

same job that they had before the leave.63 Also:

“In order to ensure that workers can exercise their right to parental leave, Member

States and/or social partners shall take the necessary measures to protect workers

against less favourable treatment or dismissal […]”64

The aim is to protect the workers on parental leave from getting dismissed or discriminated on

grounds that may be related to it. There have not yet been any comprehensive studies on the

use of the directive for parents in question, but experience from the Nordic countries where

parental leave already have been existing, it is shown that the women usually take the most

part of the parental leave.65

57 Directive 2010/18/EU, p. 8.58 Ibid, Article 2.59 Ibid, Article 3, p. 1. (8th of March 2012).60 European Commission. European Network of legal experts in the field of gender equality. The implementation of Parental Leave Directive 2010/18 in 33 European Countries. http://ec.europa.eu/justice/gender-equality/document/files/parental_leave_report_final_en.pdf 2015-12-12.61 Directive 2010/18/EU, General Considerations, p. 8.62 Ibid, Clause 2, p. 2.63 Ibid, Clause 5, p. 1.64 Ibid, p. 4.65 Barnard, EU Employment Law. 2012, p. 423. For instance mothers in Sweden take 75% of the leave and the fathers only 25%, 2014. It is an improvement when looking at 1985 where 94% of the leave was taken by mothers and 6 % by the fathers. Statistiska centralbyrån. 30 år med statistik om jämställdhet. http://www.scb.se/sv_/hitta-statistik/statistik-efter-amne/levnadsforhallanden/jamstalldhet/jamstalldhetsstatistik/12252/12259/behallare-for-press/375659/

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2.2.2 Pregnant Workers DirectiveApart from the parental leave directive there is additional legislation regarding protection for

pregnant workers and those who have recently given birth stated in directive 92/85/EEC – on

the introduction of measures to encourage improvements in the safety and health at work of

pregnant workers and workers who have recently given birth or are breastfeeding. Apart from

the fact that the directive with its configuration is aiming at improving the working

environment, its main purpose is to give pregnant workers time off. A period of at least 14

weeks’, with two weeks before the expectant date, is given to the pregnant worker.66 It is

explained as a purpose where the “special relationship” between the mother and her child is

not to be disturbed by multiple burdens as for instance, work.67 During these 14 weeks a

woman’s right in accordance with her employment must be maintained.68 One of the most

prominent rights in the Pregnant Workers Directive is that pregnant workers cannot be

dismissed during the beginning of their pregnancy until the end of their maternity leave.69

Article 12 of the directive states that the member states must provide pregnant women with

the possibility to claim their rights in a judicial way, also making sure that the remedy for any

violation is dissuasive for the employer.70

2.2.3 Equal Treatment DirectiveThe equal treatment directive 2006/54/EC – on the implementation of the principle of equal

opportunities and equal treatment of men and women in matters of employment and

occupation (recast) stems from directive 76/207/EEC – on the implementation of the principle

of equal treatment for men and women as regards access to employment, vocational training

and promotion and working conditions. There was in the latter no specific provision about

rights for pregnant workers, only the permission for employers to deviate from the equal

treatment in order to protect pregnant workers, workers who have recently given birth or

workers who are breastfeeding (from now on pregnant workers).71 After cases like Dekker72,

Tele-Denmark73 and Mayr74 a more specific statement was established in the Sex Equality

Directive where any less favourable treatment of a woman related to pregnancy or maternity

66 Directive 92/85/EEC, Art 8 (1) & (2).67 Barnard, Eu Employment Law. 2012, p. 411.68 Directive 92/85 Art. 11 (2) (a).69 Barnard, Eu Employment Law. 2012, p. 413. Directive 92/85 Art. 10 (1).70 Barnard, Eu Employment Law. 2012, p. 414. 71 Ibid, p. 403.72 Case C-177/88.73 Case C-109/00.74 Case C-506/06.

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leave within the meaning of Directive 92/85/EEC.75 The purpose of the directive is mainly to

encourage improvement in the safety and health at work for the pregnant workers.76 Also the

right to take maternity leave is stated here.77 The prohibition of dismissal is summing up not

only the ban, but also the necessary measures that must be taken from the member states to

protect workers from this kind of malpractice.78

75 Barnard, Eu Employment Law. 2012, p. 405.76 Directive 2006/54/EC, Article 1 (1).77 Ibid, Article 8 (1, 2).78 Ibid, Article 10 (1-3).

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3 The Swedish legal framework

3.1 BackgroundSweden is sometimes referred to as the best country to have children in. Generally, the

country is seen as a family-friendly state with the right to take long leave from work and

where the role of the father is underlined in its legislation.79 The parental leave laws have

since the 1970s been underlining the political aim to gain equality.80 The goal is considered to

be closely linked to which of the parents that take most time off work in order to take care of

the child.81

The proposition 2000/01:44 is stating that the aim with the generous parental leave is to

emphasizing the child’s right to have access to both parents.82 It is considered that the parents

are equally responsible for the child’s upbringing and development and the laws are compiled

in agreement with what is considered to be the best for the child. Aside from this the

proposition encourages general equality between men and women and the legislation shall

make it possible for both working parents to combine work and family life.83 This proposition

has been the basis for the current parental leave legislation but a new proposition has emerged

and will come into force from the first of February of 2016.84 The government is claiming that

the legislation shall spring from equal and shared parenting and proposes some legal change,85

aiming to be normative and by that, affect the attitude both women and men have, to parental

leave. In the long run this shall lead to improved economic situations, especially for the

female working parent.86 In the proposition it is also mentioned that even if more change

could be made in the legal field, it takes times to change norms. With this change, at least

79 Some examples: National Public Radio. Parental Leave: Swedes are the most generous. http://www.npr.org/sections/babyproject/2011/08/09/139121410/parental-leave-the-swedes-are-the-most-generous, The official site of Sweden. 10 things that make Sweden Family Friendly. https://sweden.se/society/10-things-that-make-sweden-family-friendly/, The Economist. Why Swedish men take so much paternity leave. http://www.economist.com/blogs/economist-explains/2014/07/economist-explains-15 , 2015-12-10.80 Julén, Föräldrar i arbete. En könskritisk undersökning av småbarnsföräldrars arbetsrättsliga ställning. 2007, p. 71.81 Ibid, p. 25.82 Proposition 2000/01:44.83 Ibid, p. 22-23.84 Proposition 2014/15:124.85 Socialförsäkringsutskottets betänkande 2015/16:SfU5 p. 5.86 Ibid, p. 6.

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some progress will have been made in the field of equality.87 The parental leave legislation as

it will be in Sweden from the first of February 2016, is as follows.

3.2 The parental leave legalisationThe legislation regarding the parental leave is partly stated in Föräldraledighetslagen (The

parental leave legislation, PLL).88 This is an agreement and a right that the parents have in

relation to their employer to take time off.89 It is clearly stated that it is against the law for an

employer to restrict an employee’s rights according to this law.90 Additional legislation

regarding parental leave pay is stated mostly in the twelfth chapter of Socialförsäkringsbalken

(The Swedish social security code, SSC).91 Here it is also defined how many days the parents

are allowed to take leave and regulations in conjunction with this. These two laws

complement each other and are not comprehensive on their own.

A parent’s right to take leave with pay is stated in the fifth and sixth paragraph of the PLL and

the right is valid for full time leave to take care of the new born child.92 It is stated in the SSC

that the ones who refrains work in order to care for the child have right to parental leave pay.93

The parents are granted leave for 480 days in total.94 When talking about shared custody, the

law is stating that the 480 days given are meant for both parents to share.95 Parents are

allowed to divide these days as they wish though, except for 90 days each that is reserved for

each parent.96 The same paragraph before the change, stated only 60 days as reserved ones,97

so this change can be considered of most importance. With the exception from these days it is

possible for one parent to abstain days in favour for the other.98 It is also allowed for them to

take parental leave at the same time if they like, but at most for thirty days. 99 There is a

possibility to take even more leave than those 480 days mentioned above. In order to do that

87 Ibid, p. 8.88 Föräldraledighetslag (1995:584).89 Ibid, 1 §. Here it is also stated who is considered a parent.90 Ibid, 2 §.91 Socialförsäkringsbalk (2010:110).92 Föräldraledighetslag (1995:584) 5 §.93 Ibid, 2-3 §§, Chapter 12.94 Socialförsäkringsbalk (2010:110), 12 §, Chapter 12.95 Ibid, 15 §, Chapter 12.96 Ibid, 17 §, Chapter 12.97 Ibid, 17 §, Chapter 12. Proposition 2000/01:44.98 Socialförsäkringsbalk (2010:110) 4a, 17 §§, Chapter 12.99 Ibid, 4a, Chapter 12.

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though, no parental leave pay will be given and the leave must be taken before the child’s

eight birthday.100

A privilege in the legislation is that the parents are not obligated to take full time leave. They

may choose to organise the leave so it fits the individual needs and the legislation is

formulated to ensure flexibility. Thus, they can for instance, get parental leave for half a day

and work the remaining hours.101 It is perfectly in order to work fifty percent of the time and

be on leave for fifty as an example.102 It is even possible for the parents to take leave an eighth

or one quarter of the time and vice versa.103

An employee that wants to go on leave has quite a lot of power over deciding when and how

they want to place it. The employee is allowed to go on leave whenever he/she requests and it

is allowed to distribute the leave over all days of the week. Or if the employee wishes, the

leave can be placed on a particular day of the week as well.104 These rules do have exceptions

though. The employee must consult with the employer if and when the leave shall take place

to make sure the leave will not be an inconvenience for the employer,105 since the workplace

must not be affected palpably by the requested leave.106 Despite this, the same paragraph

states that if the employer and the employee can’t come to an agreement the leave shall take

place in accordance with the wishes of the employee.107 So the employer cannot in their sole

discretion place the leave when he/she seems fit, without consent from the employee.108 Even

if the employee for some reason would change his/hers mind when on leave, they do have the

right to come back to work when they request it. The only hurdle is that the employer has the

right to postpone the return with one month.109

The legislation regarding the prohibition of disadvantaging treatment is also regulated partly

in the PLL.110 It is strictly forbidden to discriminate a person who is seeking employment or is

an employee, with parental leave as a reason for that discrimination.111 The employer can

neither dismiss an employee on grounds connected to the parental leave since this will be 100 Föräldraledighetslag (1995:584) 7 §.101 Socialförsäkringsbalk (2010:110) 9 §, Chapter 12.102 Föräldraledighetslag (1995:584) 6 §.103 Ibid, Socialförsäkringsbalk (2014:948) 12 kap.104 Föräldraledighetslag (1995:584) 11, 12 §§.105 Ibid, 14 §.106 Ibid.107 Ibid.108 Ibid.109 Ibid, 15 §.110 Ibid, 16-17 §§.111 Ibid, 16 §.

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considered void.112 If this law is breached the employer will be obligated to pay damages.113 If

argued that the employer has made a discriminating act, it is the employer who in an initial

state needs to prove that no such disadvantage has occurred.114

A pregnant female has the right to take leave before and after the expectant date, which is

stated in the fourth paragraph of the PLL.115 Only two of these weeks are mandatory.116 The

partner of the pregnant woman is allowed ten days off from work in order to attend the

delivery of the baby and also take care of the household and other existing children. 117 This is

all in order to try to aim at equal parenting and equal time off from work. Another factor that

is pointing at the increasing equality is the equality-bonus.118 In rough terms it can be

explained that parents that share those remaining days in addition to those that are not already

reserved for them, gets an additional bonus per day.119

112 Ibid, 16-17 §§. Also AD 2013:22.113 Föräldraledighetslag (1995:584) 22 §.114 Ibid, 24 §.115 Föräldraledighetslag (1995:584) 4 §.116 Ibid.117 Socialförsäkringsbalk (2010:110) 10, 14 §§, Chapter 13.118 Lagen (2008:313) om Jämdställdhetsbonus 1 §. 119 Ibid, 7 §.

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4 The Macedonian legal framework

4.1 BackgroundThe Republic of Macedonia has been an independent country since 1991120 and gained the

status of EU candidate state in 2005.121 According to the progress report from 2014 critique is

given to the Macedonian government that in different ways have failed to deliver sufficiently

on a number of key issues regarding the reforms.122 The country is still not a member of the

EU that can indicate that the progress of becoming a member is going slow, but despite this

the country is making progress meeting the political criteria, mostly in the area of

legislation.123 More efforts need to be made in the social policy sector though.124 Limited

progress has been made regarding labour law and the Ministry responsible for equal

opportunities have been involved in the development of the labour law legislation by for

instance amend to give employees additional rights to unpaid leave for childcare.125 Other

relations regarding equal opportunities have improved as the commission for prevention and

protection against discrimination has continued its work with gender equality.126 The

discussion in media and annual reports indicates that the goal of equality between men and

women is far away.127 In a country where almost a third of the population asked seem to think

it is shameful for the father to use his rights to parental leave, the implementation of directives

regarding these questions can be difficult to attempt in practice.128 Despite the problems to

120 The World Bank. Documents & Reports. Macedonia, former Yugoslav Rebublic of – Country partnership strategy for the period FY2018-18. http://documents.worldbank.org/curated/en/2014/08/20301387/macedonia-former-yugoslav-republic-country-partnership-strategy-period-fy2015-18 2015-12-13.121 European Commission. Enlargement. The former Yugoslav Republic of Macedonia. http://ec.europa.eu/enlargement/countries/detailed-country-information/fyrom/index_en.htm 2015-11-26.122 European commission. The former Yugoslav Republic of Macedonia Progress Report. 2014. P. 1. http://ec.europa.eu/enlargement/pdf/key_documents/2014/20141008-the-former-yugoslav-republic-of-macedonia-progress-report_en.pdf123 Ibid, p. 2. 124 Ibid, p. 3. 125 Ibid, p. 37. 126 Ibid.127 Nova tv. The advice from EU: A lot more need to be done in the field of equality between men and women. http://novatv.mk/index.php?navig=8&cat=17&vest=20283 , Friedrich Ebert Stiftung. Labour Relations and Social Dialogue in South East Europe. Annual Review, 2011 on Labour Relations and Social Dialogue in South East Europe. Macedonia. P. 9. http://library.fes.de/pdf-files/bueros/belgrad/08912.pdf 2015-12-01.128 Reactor (a research centre committed to facilitating Macedonia’s EU integration process by providing relevant research ) Demographic policies and gender equality in the Republic of Macedonia. http://www.reactor.org.mk/CMS/Files/Publications/Documents/%D0%9F%D1%80%D0%B5%D0%B4%D0%BB%D0%BE%D0%B3%20%D0%BC%D0%B5%D1%80%D0%BA%D0%B8%20%D0%9C%D0%A2%D0%A1%D0%9F-8-11-12.pdf 2015-11-26.

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change norms, the directives from the Union that have been interlaced with national

legislation and are by their existence indicating change.129

The Macedonian legislation regarding labour is gathered in one law called Zakon za Rabotnite

Odnosi (Law on Labour Relations) and consists of 273 articles. It is stated that the law shall

regulate the labour relations between the employees and the employers by conclusion of

employment contracts.130 The purpose of the law is to involve employees in the working

process, as well as to ensure uninterrupted flow of that process. The intention of the law is

also to respect the employees’ right to freedom of labour, dignity and protection of the

interests of employees in the labour relation.131

4.2 Legislation regarding parental leaveA female employee is entitled to have a continuous nine-month paid leave from work in

connection with her pregnancy, childbirth and maternity leave.132 She is obligated to be on

maternity leave on the 28th day before the birth of the child but she can choose to start the

leave earlier.133 The employee is obliged to announce to the employer the beginning and

ending dates of the parental leave with a 30 day notice period.134

Mothers in Macedonia have the right to return to work after the use of their maternity leave,135

and shall have the right to go back to the same position they had before the leave. If this by

any chance is not possible, the employee has the right to an equivalent position. The terms

and conditions for the employee shall be the same as the original employment contract.136 The

parental leave pay during the leave is compensating the mother with up to 50% of the

salary.137 The fathers have right to paid leave for personal and family reasons, for example the

birth of a child, up to seven working days.138 The female parent is also allowed to return to

work earlier than the nine months she is allowed to be absent.139 This legislation is referring

only to the mother and regarding parental leave for the fathers it is confirmed that if the

129 For instance; Directive 92/85/EEC, Directive 2000/78/EC, Directive 2010/18/EU.130 Law on Labour Relations, Article 1.131 Ibid, Article 2.132 Ibid, Article 165 (1).133 Ibid, Article 165 (2).134 Ibid, Article 165 (5).135 Ibid, Article 166.136 Ibid, Article 166 (3).137 Ibid, Article 166 (2).138 Ibid, Article 146 (1).139 Ibid, Article 166 (1).

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female employee does not take the maternity leave referred to in article 165, the father shall

be entitled to take it.140 There is also a section that is stating the right for the female worker to

take additional leave due to pregnancy, childbirth and parenthood. Three more months of

unpaid leave is in order but must be taken before the child turns three.141 The possibility of a

flexible working schedule where the parent in question can choose to work part time does not

exist. The only time this is allowed is if the child is born with developmental problems and

has special educational needs.142

The law also provides regulations regarding discrimination and states that an employer is not

allowed to treat a job seeker or an employee unequally on the bases of, among other things,

gender.143 In the article the regulation of equal treatment of men and women is pointed out

when it comes to work related issues such as working conditions and the right to take absence

from work.144 This section complies with the Council Directive 2000/78/EC for equal

treatment in employment and occupation and what is stated regarding direct and indirect

discrimination.145 A section is dedicated to the protection against discrimination of a female

employee on grounds of pregnancy, giving birth and parenthood.146 It is clear that

discrimination on grounds of the above stated are prohibited and no difference is being made

regarding the duration or type of employment. This is valid also for women who are

exercising their right resulting from giving birth and parenthood.147

Additional legislation exists in the Zakon za Sprecuvanje i Zastita od Diskriminacija (The law

on prevention of and protection against discrimination).148 The law also contains information

about the legal consequences if the law has been breached.149 It is against the law to terminate

an employment based on information about marital status or family planning.150 The law

considers it to be unfounded reasons for dismissal if the reason is connected to pregnancy,

childbirth and parental leave, both paid and unpaid.151 Article 101 is of great importance when

it comes to the protection of pregnant women.152 The termination of an employment contract

140 Ibid, Article 167. 141 Law on Labour Relations, Article 170-a (1).142 Ibid, Article 169.143 Ibid, Article 6 (1).144 Ibid, Article 6 (2).145 Directive 2000/78/EC Article 2 (1, 2).146 Law on Labour Relations, Article 9-b.147 Ibid, Article 9-b (1, 2).148 Law on Prevention of and Protection Against Discrimination.149 Ibid, Article 42-45b.150 Law on Labour Relations, Article 25 (5).151 Ibid, Article 77 (3).152 Ibid, Article 101.

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is not allowed according to the articles first point, if the employee is pregnant, giving birth, is

away from work due to parental leave or absence from work due to care of a child up to three

years of age.153 The employer may have to pay damages if a misdemeanour occurs regarding

this paragraph.154 The termination is to be considered void if the employer is aware of what is

stated in the first point of article 101 or if the employee lets him/her aware of this within

fifteen days.155 If a court decides that a termination of an employee has been made illegally

the employee shall be entitled to return to work, if he/she requires so.156 In addition to that, the

employer shall be obliged to pay the gross salary to the employee that he would have received

if he was at work.157 If it is not an option for the employee to return to work after an unlawful

dismissal, the court shall determine the date of the termination of the employment and shall

award the employee damage compensation.158 The discrimination acts on gender grounds are

rarely disclosed or appealed though.159

Measures for equality are not mentioned in a broad sense but regarding the recruitment

process it is written that an employer is not allowed to announce vacancies for a specific

gender nor suggest that the employer prefers a particular gender for the recruitment.160 When

concluding an employment contract the employer do not have the right to ask for information

about marital status or family planning nor asking the future employee to take a pregnancy

test.161

153 Ibid, Article 101 (1).154 Law on Labour Relations, Article 265 (9a).155 Ibid, Article 101 (2).156 Ibid, Article 102 (1).157 Ibid, Article 102 (2).158 Ibid, Article 102 (4, 5).159 Friedrich Ebert Stiftung. Labour Relations and Social Dialogue in South East Europe. Annual Review, 2011 on Labour Relations and Social Dialogue in South East Europe. Macedonia, p. 9. http://library.fes.de/pdf-files/bueros/belgrad/08912.pdf 2015-12-13.160 Law on Labour Relations, Article 24 (1, 2).161 Ibid, Article 25 (2, 3).

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5 Comparative analysis Through the information stated above about the Swedish and Macedonian legal framework, it

is quite clear that the legislations are contributing factors on the perception of parenting and

work. Looking at the two countries regulations one can consider that the differences constitute

the most parts. The length of the leave differs of course, with basically the double amount of

time in Sweden. Besides from this, one of the most prominent sections where the legislations

are distinguished from one another is when it comes to the possibilities for flexible working

schedules and the role of the father. To begin with, the possibility to work part time during the

parental leave is only possible in Sweden. As previously stated, the Swedish legislation lets

the parents decide which kind of leave fits their family. The lack of this in the Macedonian

legislation makes it a prominent difference and also limits the parents to be flexible and for

instance take leave together or “save days” in order to take the leave at a later stage in the

child’s life. As well as when the leave must be taken shows a grand difference between the

two countries. As the Macedonian legislation offers nine continuous months after the birth of

the child, the Swedish one lets the parents pick and choose when their leave shall take place

and even lets them change their minds after a decision has been made. One might argue for

the unreasonableness in that part when considering the employer, not least when it comes to

scheduling. At the same time it is stated that these opportunities exists to ensure the ability to

be flexible and hence, gain greater equality. The lack of flexibility in the Macedonian

legislation is seen in the rhetoric, when stating the father’s inability to take leave if the mother

does not refrain days for him. Firstly, this sends the signal to him that he is a lesser parent and

secondly it puts pressure on the mother to be obligated to take the nine months herself.

The lack of acknowledgement of the child as a person, who is in need of both his/her parents

is distinctly in the Macedonian legislation. This might not be surprising since the EU

directives does not put any emphasize on that topic either. The norm of the mother as the

primary parent is obvious in the directives which of course have an impact on how they are

being interpreted in all countries that are adopting them.162 The Swedish legislation uses the

role of the child as a factor when enabling equal parenting, stating the child has right to both

his/her parents. The absence of this confirms even further the norm that the father is a less

significant parent and this statement is being passed down to the next generation.

Simultaneously, female participation in the labour market in not decreasing, it is quite the 162 Julén. Föräldrar i arbete. En könskritisk undersökning av småbarnsföräldrars arbetsrättsliga ställning. 2007, p. 389.

27

opposite, leading to the conclusion that her burden is dual. In Sweden it is still mostly the

women who use the parental leave rights and still do take more leave than the fathers,

meaning that this problem is a common one for women both in Sweden and in Macedonia. At

the same time there is a political incitement with the PPL in Sweden as seen in their

propositions and additional measures are being taken by for instance, implementing the

equality bonus. Not to mention that the father must take 90 days in order for the couple to get

parental leave pay for those days. One might not think that that is sufficient enough but still, it

seems to be heading to a parental legislation that is individual and makes no difference on

gender. Maybe the parents will be sharing all the days equally in the future. As the

Macedonian laws just goes beyond the minimum requirements from the directives it is worth

discussing the political will for these reforms. The legal order must be preceded by a

connection to the morality because without the commitment from the people, the regulations

can be seen as without validity.163

The right to return to work and retain the same position after the parental leave is somewhat

hard to compare in the two countries. There are cases regarding discrimination on grounds

based on gender and parenting in Sweden. The punishments for breaching these laws have

resulted in quite high damages, which indicate a non-tolerance for this type of behaviour in

the labour market. Due to the absence of Macedonian case laws the comparison is

insufficient. This might indicate though, that even if an employer would breach regulations

regarding parenting or pregnancy, the legal consequences might not occur. The Macedonian

system seems complicated when it comes to report discrimination and by that makes it harder

for the individual to do it. By making that system easier maybe more cases would have been

brought up to the courts which would have signalised a non-tolerance policy for this type of

discrimination as well, also in Macedonia.

When comparing the countries by looking at their regulations, the differences seem huge. It is

known though, that some CEE countries have societies with conservative cultural traditions

regarding the role of and relationship between the sexes.164 So even if the Macedonian

legislation may seem underdeveloped in comparison with the Swedish one, it still meets the

criterion from the EU and may affect the norms that exist about the role of the parent and the

role of the worker. Sweden on the other hand, may strive to be the first country in the world

with completely individualised parental leave and with that, act like a role model for equality.

163 McGlynn, Families and the European Union. 2006, p. 8.164 Conaghan et al, Labour law, work and family, 2005, p. 236.

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The women’s double burden, results in them working without pay in the household which in

the long run, gives the men an advantage, when competing for desirable positions in the

labour market. Even if Swedish men must take a part of the parental leave, the part is very

little, in comparison with what the mother take. Consequently leaving the women with less

labour related experience and more time spent at home, where no salary is paid to them.

Sometimes this is argued as “choices” but when the legislation indicates that one parent is

only obliged to take 90 days of 480, the choice can seem non-existing. In Macedonia the

fathers are not obliged to take any days off, leaving the mothers with the leave and the job of

eventually pursuing the father to share the leave with her. Or maybe that is not even an option

since the law quite explicit state that the parental leave actually only is a maternity leave.

Considering the increased focus on gender that has emerged in and around labour law,

analyses of gender inequality have become more sophisticated and implicating core aspects of

traditional labour law frameworks, such as employment protection.165 The increase of the

participation of women with young children in paid work has forced the issue of reconciling

work and family obligation on to legal and policy agendas, which can be seen in the chapters

above.166 The dominant ideology of the family reproduces stereotypes and norms for women,

men and families.167 They may not reflect reality but they frame a discussion of issues. For

instance they form roles of women and men which assign women as primary care takers,

despite their entrance into the paid labour market.168 It can be argued that the structure of the

labour market, is viewing a traditional worker as one who is not having the main

responsibility for the care of the children.169 Fatherhood is seen as more distanced than

motherhood and the need for family-friendly working practices is reflected by the labour

laws. By looking at the way work and family mechanisms as institutions in a broader context,

like a comparative study between two countries, increases the knowledge of women’s need

for access to working arrangements which accommodate their family responsibilities. It has a

symbolic value by sending out clear messages regarding appropriate norms and behaviours.

Maybe they can be a tool for change. The role of the state is of great value when trying to

achieve politics that encourages citizens to pursue both family and career simultaneously.

Regardless the structure existing on the labour market (long working days, performance-based

pay, weakening bargaining power and so on) the legislation concerning these issues need to

165 Conaghan et al, Labour law, work and family, 2005, p. 1.166 Ibid, p. 1.167 McGlynn, Families and the European Union. 2006, p. 23.168 Ibid, p. 25.169 Julén. Föräldrar i arbete. En könskritisk undersökning av småbarnsföräldrars arbetsrättsliga ställning. 2007, p. 394.

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work as a facilitating factor in order to gain equivalent opportunities for both parents to

combine family and work.170 The chosen way for the EU to meet its ambition for economic

growth and increase the participation of women in the labour market, is by promoting family

friendly policies and promote equal opportunities, which in many ways is fantastic.171 With

EU as the responsible institution, the aim is to mainstream equality into all labour markets

which should encourage women to (re)enter the labour market. All well, but this may in fact

increase the women’s dual burdens associated with paid work and family life, since the

promotion of males also taking care of the household and common children, is absent.

At the same time it can be argued for that non-equal legislation regarding parenting is

resulting in unequal relationships. McGlynn argues that there can be no equality in the labour

market if there is no equality in the families.172 The men consequently exercise more power

by, for instance, having the right to choose whether or not to participate (or how much they

want to participate) in childcare.173 The concept of parenthood is still considered in traditional

norms, thus the caregiving mother and breadwinning father, when looking at these two

countries legislation. It has been argued that a “gender free society” would enable men and

women to participate equally in all spheres of live, including infant care. In order to achieve

this, there need to be changes in the structures of the workplace,174 and changes in the way

fathers are seen as parents. In the legal section the rhetoric’s from the EU are stating that this

is a problem relating to women. The statements from the European Commission about

favourable conditions for men and women falls flat when the statements at the same time

points out that the last thing that is recommended is that men withdraw from the labour

market in order to take care of their children.175 With rhetoric’s like these it is no wonder a

candidate country is not making additional measures to gain equality. Also, the changes are

left for the employers and their peers to make, and the males themselves, which may not be

the most efficient way to change norms. A replacement to a modern gender neutral approach

based on equal parenting in the EU would not be of harm.176 The policies which have been

taken in the name of gender neutral parenting generally require little or no action at member

state level.177 While the EU has determined that it needs to increase the participation of

170 Conaghan et al, Labour law, work and family, 200, p. 9.171 Ibid, p. 217.172 McGlynn, Families and the European Union. 2006, p. 40.173 McGlynn, Families and the European Union. 2006, p. 31.174 Conaghan et al, Labour law, work and family, 2005, p. 220.175 Ibid, p. 226-227.176 Conaghan et al, Labour law, work and family, 200, p. 224.177 Ibid, p. 229.

30

women in the workplace, it has failed to address this traditional paradigm, within which

European labour law generates.178 It emphasizes only changes in women’s responsibilities

when the increasing of shared responsibilities for the children would be more desirable.179

With all this in mind, the fact is still that the development is going towards increased equality

in both countries (and not the other way around) which has to be seen as a positive in the

name of equality.

178 Ibid, p. 236.179 Ibid, p. 236.

31

6 ConclusionWith this thesis I wanted to compare and show how interpretations of the same legal

framework can differ in Sweden and Macedonia. The main focus has been on the parent’s

right to take parental leave and in which way they can do so in the two countries. A

conclusion that has been made from this is that there are big differences between the two

legislations. As previously stated, the role of the mother as the primary parent and the father

as a lesser one, contributes to the conservation of the traditional gender roles. With this comes

the role of the traditional worker with male attributes which in turn, makes it harder for

women to build careers to the same extent as men. No real measures are made in the field of

integrating the male parent in order to release the women from their role as dual working

individuals. The legislation may therefore seem to be unilateral.

The perception of what the law shall offer varies which can lead to not wanting to accept it.

Of course it can be argued that the state should not interfere in the privacy of families and that

the decision of who takes leave should be made by the individuals in that particular family.

The practical problems with this are that it probably would not lead to an increase of fathers

taking more parental leave. As in many other fields, power is not easily given away. Power is

to be able to abstain the burden of dual work. To be able to choose is power. As the parental

leave is left for the fathers to decide on, if they want to participate or not, the women are left

with no choice. Thus, they must refrain paid labour in order to do the work the fathers are

opting out. This leads to inequality, both in the family and in the labour market. The only

conclusion I can draw from this is the fact that equality cannot be achieved on its own. The

legislation must work as an example for citizens in order to change norms and also ease the

burden for the female workforce.

The laws existing seem to be insufficient when it comes to the commitment to increase the

equality and promote equal opportunities for women and men, in both countries analysed in

this thesis. What is needed then? Real social changes. The perceptions of the genders must

come to an end and by that, let both parents to equally participate in the labour market. At

least, it seems like the legislation is pushing towards more equal rhetoric. One would only

wish that the progress would proceed a little more rapid.

32

BibliographyEU law

Copenhagen Criteria - Criteria established by the EU at the European Council meeting in

Copenhagen in 1993.

Treaties

Treaty of the Functioning of the European Union, Treaty of Lisbon.

Directives

Directive 76/207/EEC – of 9 February 1976 on the implementation of the principle of equal

treatment for men and women as regards access to employment, vocational training and

promotion, and working conditions. 

Directive 92/85/EEC – of 19 October 1992 on the introduction of measures to encourage

improvements in the safety and health at work of pregnant workers and workers who have

recently given birth or are breastfeeding.

Directive 2000/78/EC – of 27 November 2000 establishing a general framework for equal

treatment in employment and occupation. 

Directive 2006/54/EC – of 5 July 2006 on the implementation of the principle of equal

opportunities and equal treatment of men and women in matters of employment and

occupation (recast).

Directive 2010/18/EU – of 8 March 2010 implementing the revised Framework Agreement on

parental leave concluded by BUSINESSEUROPE, UEAPME, CEEP and ETUC and

repealing Directive 96/34/EC.

CJEU Case Law

Case C-177/88 – Elisabeth Johanna Pacifica Dekker v Stichting Vormingscentrum voor Jong

Volwassenen (VJV-Centrum) Plus [1990] ECR 3941.

Case C-109/00 – Tele Danmark A/S v Handels- og Kontorfunktionærernes Forbund i

Danmark (HK) acting on behalf of Marianne Brandt-Nielsen [2001] ECR 6993.

33

Case C-284/02 – Land Brandenburg v Ursula Sass [2004] ECR I-11143.

Case C-506/06 – Sabine Mayr v Bäckerei und Konditorei Gerhard Flöcker OHG [2008] ECR

1017.

Swedish Propositions and Official Reports

Proposition 2000/01:44.

Proposition 2014/15:124.

Socialförsäkringsutskottets betänkande 2015/16.

Swedish Case Laws

AD 2013 no 18.

AD 2014 no 19.

AD 2015 no 12.

Macedonian Legislation

Law on Labour Relations (Закон за работните односи) Official gazette of Republic of

Macedonia no. 62/2005.

Law on prevention of and protection against discrimination (Закон за спречување и заштита

од дискриминација) Official gazette of Republic of Macedonia no. 50/2010.

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