A lot has been written about the constitutionality of maternity leave provisions in the Labour Act (Chapter 28.01). Most authors seem to think that the position in the Labour Act should be ignored and that the Constitution should be followed as it takes precedence over all law of the land. Those who propose that the constitution should prevail argue that all law that is inconsistent with the constitution should be construed as null and void.
In this article, I will proffer an alternative perspective and conclude that the position found in the Labour Act is the correct legal position. I will argue that in the absence of a law amending that piece of legislation or a constitutional court ruling invalidating the provisions in the Act, employers should continue to be bound by the provisions in the Act. It must be pointed out that my argument in this article does not mean that companies are precluded from implementing better conditions compared to those found in the Labour Act.
Labour Act provisions
The Labour Act (Chap 28.01) provides for maternity leave under section 18. The important part of this section for purposes of this discussion is section 18(1) which 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.”
The section mentioned above is obligatory in granting maternity leave to an employee. The employer and the employee can provide better conditions in their employment contract or any enactment. Once better conditions have been agreed, these become decisive in determining how maternity leave will accrue to a female employee. The conditions in the Labour Act can thus be ignored once there are better conditions agreed between parties in an employment relationship.
The critical aspect of this provision is that maternity leave should be afforded an employee once the same has served for a period of one year with the same employer. Amongst other conditions placed in section 18, some commentators have argued that this section is against the constitution because the constitution, being the supreme law of the land, does not have such “onerous” conditions. It is this line of argument that I don’t agree with. I will now proceed to assess the constitutional provision that is relied on by most commentators.
The Constitution of Zimbabwe Provision
The Constitution of Zimbabwe[i] provides for maternity leave under section 65 (7). The section reads:
“Women employees have a right to fully paid maternity leave for a period of at least three months.”
Commentators have argued that this provision alone should override any other provision in any act or enactment. This section, it is argued, does not bring with it any other conditions contingent on granting maternity leave to female employees. The result, the debate rages on, is that conditions in the Labour Act are null and void.
It is important to note that, commentators mentioned above, rely on section 2 of the constitution. This section provides that the Constitution of the Republic is the supreme law of the land. All law that is inconsistent with the Constitution is “invalid to the extent of the inconsistency.” Section 2 further places an obligation on the part of everyone to uphold the constitution.
It should be pointed out that the argument, at face value, cannot be disputed. The purpose of this article is to bring, as mentioned at the beginning is to bring out an alternative perspective. This perspective entails showing that the Labour Act provisions should be construed as they are until they have been amended.
The need to consider the constitution as whole
It is argued that for one to fully grasp the meaning of constitutional provisions the constitution must be construed as a whole document[ii]. In construing the whole constitution, one needs to take note of section 86 (2) which reads as follows:
“The fundamental rights and freedoms set out in this Chapter may be limited only in terms of a law of general application and to the extent that the limitation is fair, reasonable, necessary and justifiable in a democratic society based on openness justice, human dignity, equality and freedom, taking into account all relevant factors including…”
The importance of this section is that it provides for the restriction of all fundamental rights in the constitution, including the rights that accrue to female employees in maternity leave situations. What is important is for the limitation to be in terms of a law of general application. What then is ‘law of general application’? In Du Plessis v De Klerk[iii] the court noted that the law of general application includes legislation, common law, and indigenous law. In addition, it should be noted that for a law to be of general application it must apply equally to everyone and must not be arbitrary in its application[iv].
It is argued that the Labour Act is the law of general application on maternity leave and all other labour issues. What this means is that the right in the Constitution can be limited in terms of the provisions in the Labour Act. There is nothing wrong with the legislature coming up with a piece of legislation that gives detail to the provisions in the constitution. The labour Act is there to provide much guidance on how the maternity leave should accrue to a female employee. It follows therefore that until the Labour Act is amended or until the relevant provisions have been declared unconstitutional by a competent court, the provisions remain unchanged.
The unconstitutionality of the labour act provision
As mentioned, the above debate does not preclude anyone from challenging the constitutionality of maternity leave provisions. One might argue that the provisions are not “fair, reasonable, necessary and justifiable in a democratic society based on openness justice, human dignity, equality, and freedom”. The same provisions can be attacked for being discriminatory and this a violation of the constitution.
Given what has been outlined above, it will be emphasised that until the position in the labour act pertaining to maternity leave is amended by an act of parliament, employers need to continue following the law as it is. This argument does not preclude employers who wish to come up with better conditions for maternity leave to implement the same. It should be noted that anyone contemplating to challenge the constitutionality of the maternity leave provisions might succeed based on various constitutional grounds mentioned above.
[i] The Constitution of Zimbabwe Amendment (No. 20) Act, 2013
[ii] S v Makwanyane 1995 (3) SA 391 (CC) on paragraph 115
[iii] Du Plessis v De Klerk 1996 (3) SA 850 (CC)
[iv] Islamic Unity Convention v Independent Broadcasting Authority 2002 4 SA 294 (CC).