Geraldine Tendai Kabaya
The importance of paid work in the lives of many people makes the conditions of employment of utmost importance. The right to protection of health and to safety in working conditions, including the safeguarding of the function of reproduction social security becomes a necessity.
Social security in such an instance is usually in the form of benefits that accrue despite absence from work. In order to limit the scope of the right to maternity leave and the benefits attached to it reference and focus will be on women engaged in jobs with legally prescribed hours and regular wages that are recognised as income sources on which income tax must be paid.
For the advancement of the right to fair and safe labour practices and standards the right to fully paid maternity leave is guaranteed in the Constitution and is specifically prescribed for at least three months. The provision of such a right in effect means that any other law, practice, custom or conduct by employers that prescribes otherwise is of no force or effect.
Women in both the private sector and public service are entitled to maternity leave which is provided for comprehensively in both the Labour Act and the Public Service Act. Labour legislation goes beyond the minimum ninety days to prescribe ninety-eight days maternity leave.
As is required by the Constitution such leave is granted on full pay. In this regard the law caters for loss of earnings that would otherwise result from pregnancy and confinement.
Before maternity leave is granted the female employee is required to produce a certificate signed by either a medical practitioner or registered nurse certifying that she is pregnant.
On production of such a certificate a female employee may proceed on maternity leave not earlier than the forty-fifth day and not later that the twenty first day prior the expected date of delivery.
However, the right to maternity leave is not absolute and this results from the need to balance the rights of the employee with the interests of the employer.
Maternity leave is granted only once after every twenty-four months. The twenty-four months are calculated from the day any previous maternity leave was granted.
The right is also subject to the condition that a maximum of three periods of maternity leave are granted with respect to the employees’ total service to any one employer during which she is entitled to her full salary. Although female employees may request maternity leave in excess of the periods prescribed above, the employee has discretion to grant such leave as unpaid maternity leave.
Pregnancy is a prohibited ground for discrimination under both national law, that is, the Constitution, the Labour Act and the Public Service Act, as well as under the international law through the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW).
In complying with these national and international law prohibitions for prevention of discrimination, female employees are entitled to their normal benefits and entitlements accruing to them within their scope of work.
This includes retention of their rights to seniority or promotion as well as the accumulation of pension rights to which they would have been entitled to had they not gone for maternity leave.
After giving birth, a female employee is entitled to at least one hour or two half hour periods for purposes of nursing her child.
This period or periods are granted at the request and convenience of the nursing mother on every working day during the normal hours. It is preferable that such periods be combined with portion(s) of time to which the female employee is entitled to break in order that the nursing periods are longer.
However, the granting of nursing periods is subject to the condition that it should not constitute prejudice to the employer by disrupting the normal production processes or constitute any interference with the efficient running of work.
Failure by an employer to comply with any of the provisions of the law outlined above for purposes of upholding female employees’ right to maternity leave constitutes an unfair labour practice.
However, although the labour law in Zimbabwe may be commended for realisation of the right to maternity leave more still needs to be done in order to fulfil international law obligations.
It is borne in mind that progressive realisation of the right to maternity benefits under both national and international law is subject to the availability of resources.
In terms of the International Labour Organisation (ILO) Convention that prescribes minimum standards for social security, maternal benefits should in addition to allowing for leave also include a medical benefit for the period of pregnancy and confinement that is borne by the employer.
Medical care should include at least pre-natal, confinement and post-natal care given by medical practitioners or qualified mid-wives as well as hospitalisation where necessary.
Maternal medical care should be availed with the need to maintain, restore or improve the health of women and their ability to work and attend to their personal needs.
In this regard, both public and private institutions administering the maternity medical benefit must encourage women beneficiaries to avail themselves of the general health services places at their disposal.
It is recommended that the law goes beyond the minimum standards prescribed and provide adequate maternity benefits for both men and women through aligning the provision of maternity leave in the Labour Act to the Constitution and conforming to international standards.