The Sunday Mail
Brenald Chinyowa
The Constitutional Court challenge to maternity leave in which employees are seeking unlimited maternity leave from employers really got me thinking.
As a husband, I welcome this proposal with two hands but as an employer, this proposal is rubbish and a potential threat to business growth.
I will simply refrain from employing women who are pregnant, recently married or are of child bearing age.
The Labour Act Chapter 28:01 reads:
“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 ninety-eight days on full pay to a female employee who has served for at least one year”.
Subsection 3 reads:
“A female employee shall be entitled to be granted 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 twenty-four months calculated from the day any previous maternity leave was granted.
(5) Any maternity leave requested in excess of the limits prescribed in this section may be granted as unpaid maternity leave
The born of contention is on the number of times that a female employee can go for paid maternity leave with one employer.
Ms Emelda Mhuriro, the General Secretary for Civil Service Employees Association was, in her founding affidavit, arguing that Section 65(7) of the Constitution of Zimbabwe guaranteed unlimited right to maternity leave to all female employees, but it is infringed by 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 which set conditions for the enjoyment of the right, thereby discriminating against newly employed women.
On the contrary, the Constitution of the Republic of Zimbabwe on Section 65 (7) says, ‘Women employees have a right to fully paid maternity leave for a period of at least three months. Hence, the Labour Act does not in any way infringe the provision of Sec 65 (7) of the constitution, because we don’t assume or give an implied meaning to the law.
A provision is not said to exist or to have been abolished if there is no any legal instrument, statue or an Act of parliament that explicitly says so.
My understanding is that the Constitution does not, in Section 65, give a provision for unlimited maternity leave but just on subsection 7 a maximum period in which one can go in the event that one is granted the leave, that is, the constitution is silent on the number of times on which an employee should go.
However, let’s bear in mind that the employer is running a business entity that survives on productivity.
‘When an employee comes in with ‘some news’ – that she’s pregnant and the baby’s due in six months time – cue delighted squeals from colleagues and even her boss. But most employers can’t help but wonder how the hell the business is going to cope without her’, writes entrepreneur Josephine Fairley.
As a man born of a woman, I totally appreciate the need for paid maternity leave. However, this cannot be given without the conditions and limits.
Three times is more than generous, in my opinion.
We need to remember that an employer has to foot a double salary bill each time a woman goes on maternity leave (for the woman and the temporary replacement).
Here is the interesting part of the ILO Convention 183 – Maternity Protection Convention, 2000 (No. 183) Convention concerning the revision of the Maternity Protection Convention (Revised), 1952 (Entry into force: 07 Feb 2002, Article 6 (8) on benefits.
8. In order to protect the situation of women in the labour market, benefits in respect of the leave referred to in Articles 4 and 5 shall be provided through compulsory social insurance or public funds, or in a manner determined by national law and practice. An employer shall not be individually liable for the direct cost of any such monetary benefit to a woman employed by him or her without that employer’s specific agreement except where:
· (a) such is provided for in national law or practice in a member State prior to the date of adoption of this Convention by the International Labour Conference; or
· (b) it is subsequently agreed at the national level by the Government and the representative organizations of employers and workers.
Therefore it is not supposed to be the burden of the employer to pay the female employee on maternity leave. lt is their mercy to pay.
Healthy pregnancies and healthy newborn children, combined with a measure of economic security, are an aspiration for all working mothers.
Maternity protection at work supports this aspiration. We do not need to create a sitation where employers will refrain from employing pregnant woman as that will be an unfair labour practice and a violation of the ILO C183 which says that each Member shall adopt appropriate measures to ensure that maternity does not constitute a source of discrimination in employment, including – notwithstanding Article 2, paragraph 1 – access to employment, that is limiting the number of times on which an employee can go.
Article 2 of ILO Convention 183 – Maternity Protection Convention, 2000 (No. 183) Convention concerning the revision of the Maternity Protection Convention (Revised), 1952 (Entry into force: 07 Feb 2002) satates that ‘…each Member (State) which ratifies this Convention may, after consulting the representative organizations of employers and workers concerned, exclude wholly or partly from the scope of the Convention limited categories of workers when its application to them would raise special problems of a substantial nature’.
Apart from being the supreme law of the land, the constitution also serves as a guide for the law makers in different subcategories. ln other words, the constitution must not or should not be used in isolation but several Acts can be or should be enacted to cater for specific potentially problematic areas.
In the United Kingdom, all pregnant employees are currently entitled to 26 weeks’ ordinary maternity leave.
You may then take an extra 26 weeks’ additional maternity leave, giving you a year’s leave in total.
If you take a year off, you’ll have taken your full statutory maternity leave.
In Ontario, pregnant employees have the right to take pregnancy leave of up to 17 weeks of unpaid time off work. In some cases the leave may be longer.
Employers do not have to pay wages to someone who is on pregnancy leave.
New parents have the right to take parental leave-unpaid time off work when a baby is born or comes into their care.
lnternationally, maternity leave has to be limited and there must be conditions and limitations so as to protect the employer.
Read more of my articles on The Sunday Mail website (www.sundaymail.co.zw) as I look into constructive dismissal and the new section substituted for section 12C of Cap. 28:01 where the principal Act is amended by the repeal of section 12C.
Brenald Chinyowa contributes weekly on www.sundaymail.co.zw and writes in his personal capacity. Feedback email[email protected] (0777 897 586). Blog: profbrenald.blogspot.com
