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Taurai Musakaruka People Issues
I have received numerous calls from followers of this column regarding this area and many questions were being asked and the major questions being the interpretation of changes that came into effect following Amendments Number 17 of 2002 and lately Number 7 of 2005, to the Labour Act Chapter 28:01. While watching ZTV, on April 15, 2013, I heard progressive women crying that the Labour Act is not doing much to protect the rights of working mothers especially when it comes to issues regarding maternity leave.

Generally they were calling the Minister of Labour to work on amending the Labour Act and bring in more favourable conditions and I quote one of them as saying, “giving birth is a human right”. Indeed this is true and I have also decided to add my voice to this worthy cause.

In terms of the Labour Act Chapter 28:01 Amendment Number 17 of 2002, Section 18 (1), it is stated that, “unless more favourable conditions have otherwise been provided for in any employment contract or in any enactment, maternity leave shall be granted in terms of this section for a period of 90 days on full pay to a female employee who has served for at least one year.

This was then improved through Amendment Number 7 of 2005, which increased the days from 90 to 98.
This therefore had an effect of increasing the days and the days are calendar and not working days.

As a result of promulgation of Amendment Number 7 of 2005, section 18 (4) which read, “a female employee who has served for less than one year and who requires leave for maternity purposes , shall at her request , be granted 90 days maternity without pay . . .” , was repealed.

This repeal has been misinterpreted in many circles as some people ended up in arms with their employers arguing that the section has been repealed and therefore one can proceed on paid maternity leave even without having served the employer for a period of one year. This interpretation is wrong as we still have Section 18(1), which states that 98 days shall be granted to a female employee who has served for at least one year.

If you have not served the one year period required, yours shall be unpaid leave. This technically implies that the only benefit added to our working female colleagues or partners, by amendment Number 7 of 2005 was the addition of 8 more days only.

Is this really enough and fair? It may make some business sense but from a humanitarian point of view, getting pregnant before serving one year is punishable for a working woman and surely if giving birth is a human right, aren’t we violating this right?

According to Section 18 (2) of the Act it is stated that “on production of a certificate signed by a registered medical practitioner or State Registered Nurse certifying that she is pregnant, a female employee may proceed on maternity leave not earlier than the 45th day and not later than the 21st day prior to the expected date of delivery.

This has been a challenge for most human resources practitioners as most expecting mothers will bring the certificate, five or less days before delivery, simply because “they would want

to have more time with the baby”.
What if a complication occurs while still at work and when the law is very clear like this? What are the implications for the employer? Think about it.
It is advisable therefore to observe this requirement and it may be for your good as an expecting mother as well as for the baby.

Experts have established that towards the days, you may need to be away from work stress, relax at home while waiting for the gift from our mighty God.
One of the readers of this column jokingly asked me, “What guarantee do you have that I will be relaxing at home? Who said there is no stress at home?”

I couldn’t answer this, but generally we believe we can relax better at home than at work as demands are totally different. The decision is purely yours, but you may be doing yourself a lot of good if you stay at home.

Section 18 (3) states that a female employee shall be entitled to a maximum of three periods of maternity leave with respect to her total service to any one employer during which she shall be paid her full salary; provided that paid maternity leave shall be granted only once during any period of 24 months calculated from the day any previous maternity leave was granted.

What then happens if one gets pregnant twice in 24 months? This simply means it becomes unpaid leave.
Any maternity leave requested in excess of the limits prescribed may be granted as unpaid maternity leave.
The legislature may also need to relook at this, though at the same time encourage people to plan their families.

I think there can be a win-win situation instead of just saying we will not pay. How do we expect the mother to take care of the baby if she does not have a salary?
Are we really protecting the working mother when we reduce her to a beggar if she falls pregnant outside the prescribed time?

Let’s not assume that the husband can chip in because not all husbands are capable of doing so and moreover some are single parents and there are also a number of socio-economic factors that may be at play.

Unless the employer grants sick leave for medical reasons other than maternity, sick leave may not be granted once paid maternity leave has begun or during a period of unpaid maternity leave.

During the period when a female employee is on maternity leave in accordance with section 18 of the Act, her normal benefits and entitlements, including her rights to seniority or advancement and the accumulation of pension rights, shall continue uninterrupted in the manner in which they would have continued had she not gone on such leave, and her period of service shall not be considered as having been interrupted, reduced or broken by the exercise of her right to maternity leave in terms of this section.

In terms of Section 18(8) a female employee who is the mother of a suckling child shall, during each working day, be granted at her request at least one hour or two half-hour periods, as she may choose during normal working hours, for the purpose of nursing her child, and such employee may combine the portion or portions of time to which she is so entitled with any other normal breaks so as to constitute longer periods that she may find necessary or convenient for the purpose of nursing her child.

Any person who contravenes this shall be guilty of an unfair labour practice. A female employee shall be entitled to the above benefits for the period during which she actually nurses her child or six months, whichever is the lesser.

This simply means that after returning from maternity leave one is entitled to enjoy the breastfeeding hour for an open period to nurse her child or for a maximum of six months, whichever is lesser.

If you breast feed for four months and you feel the child no longer needs breast milk, the breast feeding hour will therefore cease.
If you feel that you still want to go beyond four months it’s still okay but you should not go beyond six months.

There are some employers who were granting three months for breast feeding arguing that the six months is made up of the then three months maternity and three months breastfeeding or nursing hour.

Such an interpretation is not only wrong but sinful. The six months period is purely for nursing the child.
How can we talk of breaks when one is at home? How can we talk of one asking to be granted at her request at least one hour or two half hours when one is on leave?
Therefore allow them time to enjoy their hour, of course not at the expense of production and also not at the expense of the little one. You should strike a balance, a win-win situation.

If one looks at maternity conditions in the public and private sectors, they are different but they all apply to women. This is unfair especially for women in the public sector.
There have been calls for the harmonisation of the Public Service and Labour Acts but this has remained a pipe dream as it is taking forever.

The new Constitution is clear in terms of these rights. Section 65 (7) of the Constitution states that “women employees have a right to fully paid maternity leave for a period of at least three months (my emphasis).”

The challenge for now is that we are still to align some of our statutes including the Labour Act to the Constitution.
Given that the Constitution is supreme, any statutory provision which is inconsistent with the Constitution will be set aside and the Constitutional provisions will prevail.
The earlier the alignment is done the better as people are still in a state of confusion. Because of lack of knowledge some employees are being deprived of their rights.

This is not a women’s battle but a collective one because to every breastfeeding woman there is a smiling father.
Disclaimer: I do accept no liability for any damages or losses suffered as a result of actions taken based on information contained herein as this is not alternative to legal advice. The views contained herein are personal.

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