Direct Request (CEACR) - adopted 1994, published 81st ILC session (1994)

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

1. With reference to the comments it has been making for a number of years, the Committee notes from the Government's report that, while there is no change yet in the legislation and practice regarding the application of the Convention, the Government has undertaken to establish a comprehensive national social security scheme as soon as logistics have been worked out. The Committee hopes that such a scheme will be established soon and that in doing so the Government will not fail to take all the measures necessary to ensure full application of the Convention, taking into consideration the following points:

Article 2, in relation to Article 4, paragraph 3, of the Convention. The Committee recalls that while medical care for all Zambians in public medical institutions is free of charge, non-Zambians are required to pay fees for attendance at both public and private health institutions (section 2(a) and (b) and the First Schedule of the Medical Practitioners and Dental Surgeons (Fees) Rules, 1988). In its report the Government indicates in this respect that a comprehensive social security scheme to be established in Zambia will be non-discriminatory. The Committee notes this statement with interest. It once again expresses the hope that appropriate measures will be taken soon to give full effect to Article 2 of the Convention which lays down the principle of non-discrimination with respect to all women workers in the event of maternity and prohibits exemption on the basis of nationality in particular.

Article 4, paragraphs 4 and 8. In reply to the Committee's previous comments, the Government states that maternity benefits, to which paragraph 4 of Article 4 refers, should be viewed in their totality, namely as comprising cash and medical benefits; such benefits are provided partly by the State (medical benefits), Zambia National Provident Fund (cash grant after confinement) and the employer (full wages). It adds that this arrangement meets the provisions of paragraph 8 of this Article. The Committee notes this information with interest. It points out, however, that the maternity grant paid out of the National Provident Fund appears to cover expenses resulting from confinement but not the loss of income resulting from pregnancy and confinement. In these conditions, as long as cash benefits are not provided either by means of compulsory social insurance or by means of public funds, as laid down in the Convention, the employer remains liable for the full wages to which a woman is entitled during her maternity leave. Taking into account that, according to paragraph 8 of Article 4 of the Convention, in no case shall the employer be individually liable for the payment of cash benefits due to women employed by him, the Committee hopes that with the introduction of the comprehensive national social security scheme, the employers would be progressively relieved from the payment of wages to women on maternity leave who would receive instead appropriate cash benefits from the social insurance, as provided for by the above-mentioned provisions of the Convention. The Committee asks the Government to indicate any progress made in that respect in its next report.

Article 4, paragraphs 6 and 7. In its reply the Government states that it has taken note of the Committee's previous comments, but that Zambia is still in the process of establishing a comprehensive social insurance scheme. The Committee therefore hopes that the above scheme, once established, will give full effect to these provisions of the Convention. It asks the Government to indicate the progress made in this respect.

2. The Committee also hopes that the Government's next report will contain information on the measures taken or contemplated to give effect to the following provisions of the Convention:

Article 3, paragraph 1. In reply to the Committee's previous comments concerning section 15A(1) of the Employment Act which, contrary to the Convention, requires two years of employment before a woman employee has the right to maternity leave, the Government states that while it is perceived as a hindrance to the effective application of this provision of the Convention, the intent and purpose of the qualification required by the said section is to curtail frequency of pregnancies with a view to safeguard the health of women workers and well-being of their children. While being fully conscious of the objectives pursued by the Government, which could however be achieved by educational measures and family planning advisory counselling, the Committee cannot but once again ask the Government to take the measures necessary to bring the legislation into full conformity with the Convention by eliminating any qualifying period for entitlement to maternity leave.

Article 3, paragraphs 2 and 3. In reply to the Committee's previous comments, the Government indicates that the reason for not enacting into law on how the maternity leave should be apportioned is due to custom and practice whereby women like to take leave of longer duration after delivery. In view of this statement, the Committee hopes that the Government would not have any difficulty in prescribing in legislation a minimum period of compulsory leave after confinement of not less than six weeks, the woman concerned being free to take the remainder of the total period of maternity leave before or after confinement as she thinks fit, as authorized by the above provisions of the Convention.

Article 3, paragraph 4. The Committee once again requests the Government to take the measures necessary to ensure the application of this provision of the Convention.

Article 3, paragraph 5. In reply to the Committee's previous comments, the Government states that the minimum duration of employment for eligibility in respect of sick leave provided for under section 54 of the Employment Act, being of general application, is not applied in respect of women workers who are granted leave with full pay without any consideration of a minimum qualifying period, when they become sick in connection with their pregnancy. The Committee therefore once again hopes that the Government will have no difficulty to confirm the national practice by an express provision in the legislation.

Article 3, paragraph 6. In its previous comments the Committee has pointed out that section 15A(3) of the Employment Act refers only to illness resulting out of pregnancy and does not provide for the extension of leave in cases of illness arising out of the confinement. The Government replied that a woman on maternity leave who falls ill as a result of pregnancy, be it before or after confinement, will be granted sick leave under section 54 of the Employment Act. The Committee notes this statement with interest. It nevertheless hopes that, in order to avoid any ambiguity, the Government will consider the possibility of supplementing this section so that it would also expressly refer to illness arising out of the confinement.

Article 5. The Committee notes that the Government has taken due note of the Committee's comments and that measurse will be taken to satisfy these requirements of the Convention as soon as the economy is revitalized. In this situation the Committee cannot but once again ask the Government to do all in its power to ensure that national legislation guarantees the right of nursing mothers to the interruptions of work of a prescribed duration which are to be counted as working hours and remunerated accordingly.

3. Article 6. The Committee would be glad if the next report of the Government would contain information concerning the practical application of this Article of the Convention, including, for instance, courts' decisions, extracts from official reports, information on the number and nature of contraventions reported and any other relevant particulars.

The Committee hopes that the Government will not fail to indicate in its next report any progress made towards full application of the above-mentioned provisions of the Convention. In this connection, it wishes to draw the Government's attention to the possibility of having recourse to the technical assistance of the International Labour Office.