The Possible Unintended Consequences of the Zimbabwe's Labour Amendment Bill-Lincoln Majogo
Introduction
The Labour
Amendment Bill [HB 14-21] (hereinafter
referred to as the Bill] has raised employees’ hopes around the country. Several positive changes come with
it. It is the changes regarding maternity leave that are the subject of today’s
piece. The Bill undoubtedly makes life easier for female employees by scrapping
off preconditions to claiming paid maternity leave. These changes include the
ability to claim paid maternity leave more than three (3) times from an
employer. Also, female employees will no longer be required to have worked for
at least one year to claim paid maternity leave. A second thoughtful look at
the Bill however suggests that the proposed changes may not all be rosy. The
Bill may lead to unintended consequences. In philosophy, the term, “the
law of unintended consequences” refers to an act done in good faith but
leads to unexpected adverse effects that may defeat the primary intention of
the good act. To fully comprehend the possible unintended effects of the Bill, the article will be structured as
follows; firstly it will briefly unpack the current law regarding maternity
leave, then discuss the changes that the Bill brings and lastly opine on the possible
unintended consequences of the Bill.
The law.
Under the current Labour
Act [Chapter 28:01] (hereinafter
referred to as “the Act”), an employer is obliged to pay maternity leave to
an employee but after they satisfy certain preconditions[1]. The
first pre-condition is that an employee must have served for at least one year
to be eligible to claim paid maternity leave from an employer[2].
Secondly, the employee can “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[3],
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”.
Simply put, an
employee can claim paid maternity leave from the same employer only three times.
Moreover, an employee can claim paid maternal leave at two (2) years intervals which
are calculated from the date on which the last leave was paid. Hence by way of
example, if the employer grants an employee paid maternity leave on the 28th
of March 2020, the employer can only grant the next paid leave on or after the 28th
of March 2022.
The patent risk
associated with the current position is that employers can frustrate an employees’
eligibility to claim paid maternity leave by simply not giving them contracts
exceeding a year.
Secondly, if the
employee has exhausted the maximum number of times(3) within which she can
claim paid maternity leave, an employer is no longer obliged to pay for
subsequent maternity leaves. The full financial burden to fund the maternity leave
passes to the employee. Hence, the
position is not desirable for female employees as it limits their choice
regarding how many children to have and when to give birth. Further, the
current provision discriminates against women that are employed under fixed-term
contracts of less than a year in that they are not protected the same way women
engaged in contracts exceeding a year are. We will now move to discuss the
proposed amendments and their effects.
The Bill.
The Bill deletes
the words “who has served for at least one year”[4]
from section 18(1) of the Act. Section 18(1) of the Act reads as follows;
“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.”
[underlining for emphasis]
The net effect of
the Bill is that employees will no longer be required to work for at
least a year to be eligible to claim paid maternity leave from
an employer. Therefore employees will now enjoy equal rights regarding paid
maternity leave regardless of the length of their contracts. The mischief being
addressed by the Bill is the employer’s tendency of employing female workers on
fixed-term contracts to evade the burden of funding them when they go on maternity
leave. The second and probably far-reaching change is the repeal of subsection
3 of the current Act[5].
Subsection 3 of
the Act reads that “(3) 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.”
The repeal of the abovementioned
subsection scraps off two (2) essential hurdles to an employee’s full
realization of the right to paid maternity leave. The net effect of the removal
of the preconditions is that an employee will now be able to claim paid
maternity leave more than three times from the same employer. Secondly, the
employee will now be in absolute control regarding how she chooses to space
their children. In summation, an employee will no longer be required to wait twenty-four
(24) months from the date upon which she last claimed maternal leave to claim
another leave with pay.
The possible
unintended consequences of the Bill.
As stated above,
the proposed provisions in the Bill are progressive and align the Act to section
65 of the Constitution. However, the changes may also add fuel to the fire.
Zimbabwe operates
in a neo-liberal capitalistic industry. This reality entails that maximization
of profits with little regulation is the primary motive for business. From the employer’s
perspective, the Bill places an enormous burden on them because female
employees can now claim maintenance more than three (3) times which is a
drastic change from the current position in which she can claim paid maternity
leave from the same employer only thrice.
Section 65(7) of the Constitution makes
it clear that female employees have a right to fully paid maternity leave for
three months.
Evidently, the
Bill increases employers’ exposure to costs of business because normally when
female employees go on maternal leave, the employer is forced to hire a
temporary replacement for that position. Thus under the current position, an
employer pays twice the amount for every single month of those three months when
an employee is on maternity leave. The first payment goes towards the employee that
is on leave and the second towards the replacement one. However, with the
current position, the exposure is at least regulated in that “she
needs to have worked at least a year” for that employer and
that she cannot claim paid maternity leave from the same employer more than
three times. The spacing is also regulated by law. Planning for employers,
therefore, is much easier.
Ultimately, the
effect of the Bill is that it makes female employees less preferable to employ
compared to their male counterparts. It is accepted that the Act protects women
against discrimination but the hard reality is that proving discrimination in
courts requires financial resources, an essential tool that very few employees
have. Even if this is not precisely the case, employers will be discouraged
from employing the majority of their workforce as women because the exposure is
too high as compared to employing men who don’t go for maternity leave. In
all senses of the Bill, the unintended consequence is clear. In trying to
promote women’s rights in the workplace, the law might even cause hurdles that
will adversely make women’s entry into the workplace on a larger scale
difficult.
South Africa has introduced
paternity leave to curb some of the ugly effects of inequality in the workplace.
Admittedly, paternity leave is not enough to arrest the ugly situation of
discrimination because the days that men are allowed this sort of leave are substantially
less than a woman’s. In any event, in South
Africa, paternity leave is unpaid hence there isn’t much of an incentive
for men to take it. However, it is a small step in the fight to create
substantial equality. Sadly, the Bill
is silent on that pertinent issue regarding paternity leave.
The way forward
It would be
disingenuous to conclude without making reference to the legislative mechanisms
in the Act whose purpose is to protect employees from discrimination. Section 5
of the Act reads;
“(1)
No employer shall discriminate against any employee or prospective employee on
grounds of race, tribe, place of origin, political opinion, colour, creed,
gender, pregnancy, HIV/AIDS status or, subject to the Disabled Persons Act
[Chapter 17:01], any disability referred to in the definition of “disabled
person” in that Act, in relation to— (a) the
advertisement of employment; or (b) the recruitment for employment; or
(c) the creation, classification or abolition of jobs or posts; or (d) the
determination or allocation of wages, salaries, pensions, accommodation, leave
or other such benefits; or (e) the choice of persons for jobs or posts,
training, advancement, apprenticeships, transfer, promotion or retrenchment; or
(f) the provision of facilities related to or connected with employment; or (g)
any other matter related to employment.”
Therefore from the
above-cited provision, the right to non-discrimination is enjoyed by both
confirmed and prospective employees[6]. A
confirmed or prospective employee that feels discriminated against because of “pregnancy”
or “gender”
or on any other ground listed under section 5 of the Act can file a claim in the
relevant tribunal claiming an unfair labour practice[7]. In
summation, the Act still provides some sort of legal insurance against possible
cases of discrimination against female employees due to the proposed amendments
to the Act.
In conclusion, the
Bill will bring some positive changes as aforementioned already. However, the
law of unintended consequences may impede the full realization of its primary
objectives by creating an even uglier situation for women’s entry into the
workplace.
Disclaimer
The contents and suggestions
contained in this article are for information purposes only and are not for the
purpose of providing legal advice. If need be, you should contact us to obtain
advice with respect to any particular issue or problem aforementioned herein.
Contact details are; Cell: +263 718832210
Tel+263 242 703/6, 701622, Email: lmajogo@mhishilaw.co.zw, website:
www.mhishilaw.co.zw
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