Direct Request (CEACR) - adopted 1998, published 87th ILC session (1999)

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

With reference to its previous observation, the Committee wishes to draw the Government's attention to and/or receive detailed information on the following points:

Article 2 of the Convention (in relation to Article 4, paragraph 3). In reply to the Committee's comments, the Government indicates that, within the framework of the health care reform programme, beneficiaries, whether Zambian citizens or foreigners, will now have to contribute to the cost of medical services. It also indicates that prenatal and postnatal care is provided free of charge. The Committee notes this information and would be grateful if the Government would provide copies of the relevant legislation and details of the medical benefits provided.

Article 3, paragraph 1. Replying to the Committee's comments on section 15A(1) of the Employment Act which, contrary to the terms of the Convention, stipulates that a woman worker must have worked for at least two years before being entitled to maternity leave, the Government recalls that Zambia faces many economic and social problems and that measures of the kind provided for in section 15A(1) are necessary to combat the country's rapid population growth. The Government also considers that the introduction of unconditional maternity leave will inevitably have negative consequences for women's employment prospects. It adds that, once economic and social conditions have improved, Zambia will re-examine the possibility of amending its legislation in this area.

The Committee notes this information. It recalls that Article 3, paragraph 1, of the Convention does not make the entitlement to maternity leave conditional on a minimum period of employment. Furthermore, while it is aware of the present social and economic situation in the country, the Committee wishes once again to draw the Government's attention to the fact that the Government's objective of limiting the birth rate could be achieved by other means, such as education and family planning. In addition, the Committee emphasizes that it is precisely to prevent employers from refusing to hire women of child-bearing age that the Convention, in its Article 4, paragraphs 4 and 8, stipulates that in no case shall the employer be individually liable for the cost of benefits due to women employed by him, and that consequently maternity benefits should be provided either by means of compulsory social insurance or by means of public funds (see comments on Article 4, paragraphs 4 and 8, below). The Committee therefore hopes that the Government will re-examine the question in the light of the foregoing comments and that the Government's next report will contain information on the measures taken or considered to remove from its legislation any reference to a minimum period of employment as a condition for entitlement to maternity leave, in accordance with Article 3, paragraph 1, of the Convention.

Article 3, paragraphs 2, 3 and 4. The Committee recalls that, under the terms of Article 3, paragraphs 2 and 3, of the Convention, part of the maternity leave (at least six weeks) must be taken after confinement. As regards the remaining leave, the Committee emphasizes once again that it can be taken either before the presumed date of confinement or following the expiration of the compulsory postnatal leave period, or, alternatively, partly before the presumed date of confinement and partly following the date of confinement. The requirement for a compulsory period of leave after confinement of at least six weeks constitutes a protective measure the purpose of which is to prevent women workers from returning to work before this period elapses, to the possible detriment of their own or their children's health. Under these circumstances, the Committee trusts that the Government will not fail to introduce a provision for a minimum period of compulsory leave after confinement of at least six weeks. In this regard, the Committee recalls that, if the actual date of confinement is after the presumed date, the prenatal portion of leave must be extended until the actual date of confinement, without reducing the period of compulsory leave to be taken after confinement, in accordance with Article 3, paragraph 4, of the Convention.

Article 3, paragraph 5. Replying to the Committee's earlier comments, the Government indicates that a Bill has been introduced to abolish the minimum period of continuous employment of one month as a condition for entitlement to sick leave, which had been provided for under section 54 of the Employment Act. The Committee notes this information with interest. It asks the Government to provide a copy of this text as soon as it has been adopted.

Article 3, paragraph 6. In its previous comments, the Committee had indicated that section 15A(3) of the Employment Act referred only to illness resulting from pregnancy and did not provide for any extension of leave in cases of illness resulting from the confinement. It notes with interest the Government's statement to the effect that, since confinement is a consequence of pregnancy, it is understood that section 15A(3), which refers to "illness resulting from pregnancy", covers the provisions of the Convention without any ambiguity and allows women workers to take sick leave before or after confinement at any time from the beginning of their pregnancy.

Article 4, paragraphs 4, 6, 7 and 8. With reference to the Committee's previous comments, the Government states that, until such time as a general social security scheme is established, employers will continue to pay cash benefits to women workers during their maternity leave if the Government is unable to do so as a result of its economic difficulties. The Committee recalls that, under the terms of Article 4, paragraphs 4 and 8, of the Convention, cash benefits must be provided through a compulsory insurance system or from public funds, and that employers should in no case be individually liable for the cost of such benefits. In this regard, the Committee notes from the Government's reply that the Act to transform the Zambia National Provident Fund into a comprehensive social security institution has not yet entered into force as a result of certain logistical problems. While being aware of the difficulties faced by the Government, the Committee expresses the hope that it will take the necessary measures to put in place a social security system that will provide appropriate maternity cash benefits as defined in paragraphs 4, 6 and 7 of this Article of the Convention or, failing this, to ensure that such benefits are provided out of public funds.

Article 5. In its reply, the Government acknowledges the Committee's concern with regard to nursing breaks. It also states that, within the limits of its economic and financial resources, Zambia will endeavour to adopt provisions to give effect to Article 5 of the Convention. The Committee therefore hopes that the Government will be able to take the necessary measures to supplement its national legislation with a provision allowing nursing mothers to take time off at work for specified periods which will be counted as working hours and remunerated accordingly.

Article 6. In reply to the Committee's comment, the Government indicates that the provisions of section 15B(1) of the Employment Act ensure that women will not be dismissed for reasons connected with their pregnancy. It also states that no case of dismissal of a pregnant worker has come before the courts. The Committee recalls that Article 6 of the Convention prohibits dismissal of a woman worker during her maternity leave, or notification of dismissal at a time such that the notice would expire during her absence. The Committee therefore hopes that the Government will be able to take the necessary measures to bring its legislation into conformity with this provision of the Convention.

The Committee hopes that the Government will indicate in its next report any progress that has been made towards full application of the aforementioned provisions of the Convention. It would also remind the Government of the possibility of recourse to the technical assistance of the ILO.

Lastly, the Committee hopes that the Government will provide with its next report copies of the current texts of the Minimum Wages and Conditions of Employment (General) Order and of the Order concerning the same issues as applicable specifically to shopworkers.

[The Government is asked to report in detail in 2000.]