Matthias Ruziwa HR Issues
“Establishing qualification periods for maternity leave does not conform to ILO maternity protection standards”. According to Convention No. 183, as well as the older ILO maternity protection standards, the sole pre-requisite for a worker’s right to maternity leave is the production of a certificate indicating the expected date of birth.
In national laws, a woman’s right to take maternity leave is often linked to various eligibility qualifications.
The Herald edition of January 26 2016; reported that Sections of the Labour Act, which only allow woman of at least one year service in an organisation to enjoy the right to fully paid maternity leave and giving employees a maximum of three periods of maternity leave with one employer, have been contested at the Constitutional Court by the General Secretary of the Civil Service Employees Association, Ms Emelda Mhuriro.
She was quoted as saying “Section 65 of the Constitution of Zimbabwe guaranteed unlimited right to maternity leave to all female employees, but Section 18(1) and (3) of the Labour Act and Section 39(1), (3) and (4) of the Public Service Regulations, Statutory Instrument 1 of 2000 set conditions for the enjoyment of the right, thereby discriminating against newly employed women”.
ILO Convention No. 183, Article 4(1) reads: “On production of a medical certificate or other appropriate certification, as determined by national law and practice, stating the presumed date of childbirth, a woman to whom this Convention applies shall be entitled to a period of maternity leave of not less than 14 weeks (98 days)”.
Before I look at the Zimbabwean situation with regards to maternity leave protection, I will make an attempt to analyse practices in other parts of the world.
Often, national laws prescribe a certain period of notice which a woman must give her employer should she plan to go on maternity leave. In Croatia, for example, a worker must notify her employer of her intention to take maternity leave as soon as possible, and not less than one month before the leave is due to begin.
In Belgium, a woman must inform her employer no later than seven weeks before the expected birth, based on medical certification. In Colombia, there is no fixed period of notice, but an employee must inform the enterprise of her pregnancy, the presumed date of childbirth and the date on which the period of leave will commence, as well as presenting a medical certificate to the employer after childbirth.
A woman worker in Seychelles must give her employer three months` notice before her expected date of childbirth.
In some countries, a woman needs only to be employed at the time of going on maternity leave in order to be entitled to such leave (usually upon production of a pregnancy certificate).In other countries, a woman has to have been employed for a certain period before the maternity leave, and often this employment has to have been with the same employer.
In South Africa, a female employee must work a minimum of 24 hours a month for her employer to be required to grant her maternity leave. The ILO Committee of Experts has repeatedly pointed out that establishing qualification periods for maternity leave does not conform to ILO maternity protection standards.
The 2010 Labour Relations Act of Libya, repealed the qualifying period of six consecutive months of employment previously stipulated in order to benefit from maternity leave and brought national legislation in line with Convention No. 103 (ILO CEACR, 2014).
Certain countries restrict the number of times a woman can take maternity leave, or leave may be granted only once during a given period. Most frequently, such limitations can be found in employer liability schemes in which the aim is to not overburden employers.
The former is the case in Egypt, where a worker may not obtain maternity leave more than twice throughout the period of employment, and in Barbados, where women cannot take maternity leave more than three times while working for the same employer.
In Sri Lanka, women giving birth to a third or subsequent child are only entitled to six out of 12 weeks of maternity leave. Countries in which maternity benefits are paid by employers often impose a minimum period of employment with the same employer for the employee to be entitled to income replacement during the maternity leave period.
At this juncture, I shall take a close look at the Zimbabwean maternity leave provisions envisaged in Section 18 of the Labour Act (Cap 28:01). In Zimbabwe, a woman needs at least 1 year of service with her current employer to qualify for paid leave. An employee who has served for less than 1 year is entitled to leave but not to cash benefits.
Furthermore, paid maternity leave may only be granted three times for the same employer and only once during a 24-month period. Section 65(7) Zimbabwe`s Constitution reads; “Women employees have a right to fully paid maternity leave for a period of at least three months”. What this means is that the current conditions envisaged under Section 18 (1) and (3) of the Labour Act are not in line with the provisions of the Constitution and requires amendments.
In my view, as reported in my previous article published in the Herald edition of 21 January 2016 entitled, “Zim Labour Relations, What does 2016 hold?”, the previous year witnessed changes to the Labour Act which were mainly brought into effect after the famous Supreme Court judgement SC 43 /15 in the matter between Zuva Petroleum v Don Nyamande and Kingston Donga.
It is also commonly understood that the Labour, Amendment Act No 5 of 2015 came in specifically to cure challenges that emanated from SC 43 /15. Going forward, it is more likely that the issue of protection of maternity rights will be amongst some of the outstanding principles which the Tripartite Negotiation Forum (TNF) will redress in accommodating a total labour reform process that will sustain the country for the next five to 10 years as has been the trend in the past.
Nevertheless, since the issue has already been presented to the Constitutional Court because of its constitutional nature, we shall wait to see the Court`s ruling which will then guide stakeholders within the labour relations fraternity.
Matthias Ruziwa is an experienced and growing Strategic Human Resource Practitioner. He is also an independent arbitrator practicing in the Midlands Province, City of Kwekwe. Opinions expressed herein are solely those of the author. You can contact Matthias at the following email address: [email protected] /whatsapp 0773 470 368