adminDavies Ndumiso Sibanda
The new constitution has express maternity leave provisions which are causing confusion as the Labour Act has not been aligned to them.
Section 65(7) of the Constitution of Zimbabwe reads, “Women employees have a right to fully paid maternity leave for a period of at least three months.” Many employers and workers are not clear on the application of this provision.
The legal position is that the provision overrides any legislation on maternity leave that is not consistent with it.
The challenge is that the Labour Act has not been aligned to the constitution, however that does not stop people from following what the new constitution says. The correct reading of maternity leave provisions in the Labour Act is to identify those clauses that offend the constitution and exclude them and include any additions given in the constitution.
It must be noted that the constitutional provision has to be unpacked through the Labour Act where procedures for accessing maternity leave and related rights and limits are given as is with the present provisions of section 18 of the Labour Act.
Going into problem areas for parties, one area that gives both employers and employees problems is the number of leave days. I am of the view that at harmonisation the days will remain 98 as the constitution prescribes a minimum of 90 days. I cannot see parliament diminishing gains enjoyed by female employees considering that there was robust debate by the tripartite parties when 98 days was arrived at. My thinking is that employers should continue granting 98 days maternity leave.
I am of the view that an employee, in terms of the new constitution does not have to serve at least one year before qualifying for maternity leave. I believe the constitution removes that restriction just as I believe the two years interval between having children and the maximum of three children with one employer are unconstitutional and are likely to be dropped when the Labour Act is aligned to the constitution.
What then should employers and workers do? I am of the view that most provisions relating to maternity leave will remain as they do not offend the constitution. In the meantime, employers should deal with maternity leave application with caution and seek guidance from labour experts or lawyers on interpretation of the law in all grey areas.
Davies Ndumiso Sibanda can be contacted on: email:[email protected]; or cell No: 0772 375 235
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