ITS KNIVES OUT AGAIN: Employer vs Employees
By Brenald Chinyowa
‘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. Employers will simply refrain from employing women who are pregnant, recently married or of child bearing age’.
It was reported by the Herald newspaper on 26 January 2016 under the headline ‘Con-court challenge for maternity leave’, that it is before the constitutional court that employees are asking for unlimited maternity leave from the employers and asking for possible amendment of the labour Act Chapter 28:01 Section which reads
Section 18 (1) 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. And subsection 3 which says
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.
- Any maternity leave requested in excess of the limits prescribed in this section may be granted as unpaid maternity leave
The born of contention was on the number of times a female employee can go for paid leave with one employer.
Ms Mhuriro the General Secretary for Civil Service Employees Association was in her founding affidavit reported saying 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 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’. The time honored and the golden rule of statutory interpretation that is to give the words of statues their primary meaning has to be applied. Hence I respectfully agree with the labour Act that it 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 survive on your 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 fully support unlimited paid maternity leave. However, this cannot be given without the conditions and limits. As a boss, maternity leave is a nightmare for employers, Three times is more than generous, in my opinion. We should 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 it reads
- 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 not supposed to be the burden of the employer to pay the female employee on maternity leave but it the mercy of the employers to pay because our economy and social security system are insufficiently developed. Let it be in the cognisance of all female employees fight for the benefits when on maternity that when this law was designed the employer was not supposed to foot the bill of your benefits.
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. But learning from the above lobbying for unlimited maternity leave with one employer is purely barbaric and being dystopian because employers will simply refrain from employing pregnant woman and that becomes 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 serves them from being discriminated against.
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) says that,… ‘ each Member 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 serves as a guide for the law makers in different subcategories, in other words the constitution must not or should not be used in isolation but several Acts can be or should be enacted catering 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 or child is born or first comes into their care. Birth mothers who took pregnancy leave are entitled to up to 35 weeks’ leave. Birth mothers who do not take pregnancy leave and all other new parents are entitled to up to 37 weeks’ parental leave
So it’s an international practice that maternity leave has to be limited and there must be conditions and limitations so as to protect the employer. It’s high time employees should be think productively as you lobby for certain things in the labour industry. Remember if you milky away all your employers money he will simply cease operations and you go home, moswera mumabhiriji nemumaraini
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.