Observation (CEACR) - adopted 2011, published 101st ILC session (2012)

Maternity Protection Convention (Revised), 1952 (No. 103) - Zambia (Ratification: 1979)

Article 3(1) of the Convention. Maternity leave. For many years, the Committee has been drawing the Government’s attention to the fact that section 15(A) of the Employment Act (Cap 268) does not comply with the Convention on the following points: (i) contrary to this provision of the Convention, section 15(A)(1) of the Employment Act, and section 7(1) of the Schedule to the Order of 14 January 2002, submit entitlement to maternity leave to the completion of two years of continuous service from the date of the first engagement or since the last maternity leave taken; and (ii) there is no provision in the national legislation providing for a compulsory period of postnatal leave of not less than six weeks.

In its reply, the Government indicates that the provisions on maternity leave (section 15(A) of the Employment Act (Cap 268)) have been supported by all partners in the Tripartite Consultative Labour Council and therefore no proposals were made to review this section. The Zambia Federation of Employers (ZFE) also states that this provision has been accepted by workers and employers and that so far no complaints have been raised by the workers. Both the Government and the ZFE report that women can take unpaid maternity leave if they do not meet the conditions of section 15(A). The Committee would like the Government to confirm, by reference to the corresponding provisions of the national law, that female workers, who do not fulfil the requirement of two years continuous employment, have the right to unpaid maternity leave in case of pregnancy and confinements, as well as the right to protection against dismissal.

With regard to the compulsory nature of the six-week postnatal leave, the Committee points out to the Government and the social partners that this measure is considered essential to safeguard the health of the mother and child, particularly in view of the fact that women are often compelled to return to work as soon as possible after confinement for economic reasons. Nationwide, compulsory postnatal leave guarantees the preservation of the reproductive health of the population. The Committee refers in this respect to the statistical information of the 2007 Zambia Demographic and Health Survey that 61 per cent of married women are employed (table 16.1 of the Survey) and its conclusions, that mortality related to pregnancy and childbirth remains relatively high in the country (page 259 and table 15.4 of the Survey). The Committee requests the Government to do all in its powers to undertake in the very near future legislative action to bring the provisions of the Employment Act on maternity leave in conformity with the Convention.

Article 4(3). Medical benefits. The Committee notes that no information that it had requested on the nature and scope of medical benefits which are guaranteed to female employees according to Article 4(3) of the Convention was received. In its reply, the Government states that it is still assessing how medical benefits could be managed and paid by the National Pension Scheme Authority. The Committee requests the Government to provide further information in its next report on the progress made in the establishment of free medical benefits to protect women during pregnancy and post-natal leave.

Article 4(4), (6), (7) and (8). Maternity cash benefits. The Government reports that it is considering with the social partners how a scheme that is in conformity with the provisions of the Convention could be maintained and managed in Zambia. The ZFE specifies that it is opposed to amending section 15(A), as long as employers have to continue to bear the burden of paying at the same time a salary to a woman on maternity leave and to someone else to do her work. However, the ZFE specifies that employers may be in a position to reconsider amending the current legislation if the Government sets up a public fund or a compulsory insurance scheme where the costs would be shared between employers and employees, and urges the ILO to provide technical assistance to the Government in this respect. The Committee also notes the Government’s statement that a progressive approach is being adopted to the application of the Convention and that it is currently engaged in determining the best way to implement it. Recalling that the maternity cash benefits should be financed collectively by way of insurance contributions or taxes, the Committee hopes that, notwithstanding the difficulties involved, the Government would undertake to replace progressively the direct employer liability system by a social insurance scheme and requests the Government to keep the Committee informed of any measure taken or envisaged in this respect and recalls that the Government might wish to avail itself of the technical assistance of the Office.

Article 5. Nursing breaks. The Government states that it has taken into consideration the observation of the Committee and incorporated the provision for nursing breaks in the draft Employment Act Bill. The Committee notes with interest this development and requests a copy of the draft provisions with an indication of the time frame for its adoption.

Article 6. Protection against dismissal. The Committee notes with interest the Government’s statement that section 7(4) of the Schedule to the Order of 14 January 2002, which is reproduced in section 15(B) of the Employment Act, has been repealed and replaced by Statutory Instruments Nos 1 and 2 of 2011 in order to take into consideration the comments of the Committee. As a result, a female employee shall not be dismissed in connection with her pregnancy and she will have six months beyond maternity leave in which she remains a protected employee. The Committee notes that in the previous version of the Employment Act, Section 15(B) the protection against dismissal was effective only during six months after delivery. The Committee requests a copy of the Statutory Instruments Nos 1 and 2 of 2011.