PART
IX MATERNITY
PROTECTION 37. Length
of eligible period and entitlement to maternity allowance. (1) (a)
Every female employee shall be entitled to maternity leave for a period
of not less than sixty consecutive days (also referred to in this Part
as the eligible period) in respect of each confinement and, subject
to this Part, she shall be entitled to receive from her employer a
maternity allowance to be calculated or prescribed as provided in subsection
(2) in respect of the eligible period. (aa)
Where a female employee is entitled to maternity leave under paragraph
(a) but is not entitled to receive maternity allowance from her employer
for the eligible period under paragraph (c), or because she has not
fulfilled the conditions set out in subsection (2)(a), she may, with
the consent of the employer, commence work at any time during the
eligible period if she has been certified fit to resume work by a
registered medical practitioner. (b) Subject
to section 40, maternity leave shall not commence earlier than a
period of thirty days immediately preceding the confinement of a
female employee or later than the day immediately following her confinement. Provided
that where a medical officer or the registered medical practitioner
appointed by the employer certifies that the female employee as a result
of her advanced stage of pregnancy is unable to perform her duties
satisfactorily, the employee may be required to commence her maternity
leave at any time during a period of fourteen days preceding the date
of her confinement as determined in advance by the medical officer
or the registered medical practitioner appointed by the employer. (bb) Where
a female employee abstains from work to commence her maternity leave
on a date earlier than the period of thirty days immediately preceding
her confinement, such abstention shall not be treated as maternity
leave and she shall not be entitled to any maternity allowance in
respect of the days during which she abstains from work in excess
of the period of thirty days immediately preceding her confinement. (c )
Notwithstanding paragraph (a), a female employee shall not be entitled
to any maternity allowance if at the time of her confinement she
has five or more surviving children. (d) For
the purposes of this Part, “children” means all natural children,
irrespective of age. (2)(a) A
female employee shall be entitled to receive maternity allowance for
the eligible period from her employer if: (i)
she has been employed by the employer at any time in the four months
immediately before her confinement; and (ii)
she has been employed by the employer for a period of, or periods
amounting in the aggregate to, not less than ninety days during
the nine months immediately before her confinement. (b) A
female employee who is eligible for maternity allowance under subsection
(1)(a) shall be entitled to receive from the employer for each ‘day
of the eligible period' a maternity allowance at her ordinary rate
of pay for one day, or at
the rate prescribed by the Minister under
section 102(2)(c), whichever is the greater. (c )
A female employee employed on a monthly rate of pay shall be deemed
to have received her maternity allowance if she continues to receive
her monthly wages during her abstention from work during the eligible
period without abatement in respect of the abstention. (d) Where
a female employee, claims maternity allowance under this section
from more than one employer, she shall not be entitled to receive
a maternity allowance of an amount exceeding in the aggregate the
amount which she would be entitled to receive if her claim was made
against one employer only. (3) Where
there are more employers than one from whom the female employee would
be entitled to claim maternity allowance in accordance with subsection
(2) the employer who pays the maternity allowance shall be entitled
to recover from such other employer, as a civil debt, a contribution
which shall bear the same proportion to the amount of the maternity
allowance paid to the female employee as the number of days on which
she worked for such other employer during the period of nine months
immediately preceding her confinement bears to the total number of
days on which she worked during the said period. Provided
that if the female employee has failed to comply with section 40(1)
or (2), the employer who pays the maternity allowance shall not thereby
be prevented from recovering contribution calculated in accordance
with this subsection. 38. Payment
of maternity allowance. The maternity
allowance referred to in section 37(2) and accruing in each wage period
under the contract of serve of the female employee shall be paid in
the same manner as if such allowance were wages earned during such
wage period as provided in section 19. 39. Payment
of allowance to nominee on death of female employee. If a female
employee, after giving notice to her employer that she expects to be
confined, commences her maternity leave and dies from any cause during
the eligible period, her employer or any employer who would have been,
but for the death of the female employee, liable to pay any maternity
allowance shall pay to the person nominated by her under section 41
or, if there is no such person, to her legal personal representative,
an allowance at the rate calculated or prescribed as provided in section
37(2) from the day she commenced her maternity leave to the day immediately
preceding her death. 40. Loss
of maternity allowance for failure to notify employer. (1) A female
employee who is about to leave her employment and who knows or has
reason to believe that she will be confined within four months from
the date upon which she leaves shall before leaving her employment
notify her employer of her pregnancy and if she fails to do so, she
shall not be entitled to receive any maternity allowance from such
employer. (2) A female
employee shall within a period of sixty days immediately preceding
her expected confinement notify her employer of it and the date from
which she intends to commence her maternity leave and if she commences
such leave without so notifying her employer, the payment of maternity
allowance to her may be suspended, notwithstanding section 38, until
such notice is given to her employer. (3) Any
employer who dismisses a female employee from her employment during
the period in which she is entitled to maternity leave commits an offence. (4) Any
female employee whose employer provides free medical treatment for
his employees and who when she is pregnant persistently refuses or
fails to submit to such medical treatment offered free by her employer
as a registered medical practitioner certifies to be necessary or desirable
in connection with her pregnancy, expected confinement or confinement
shall, if she would otherwise be entitled to receive any maternity
allowance, forfeit such allowance to the extent of seven days. (5) The
want of or any defect or inaccuracy in any notice required to be given
in accordance with this section shall not be a bar to the maintenance
of any claim to maternity allowance unless the employer is proved to
have been prejudiced by the want, defect or inaccuracy of such notice. (6) The
failure to give any such notice within the period specified in this
section shall not prejudice the right of a female employee to receive
any maternity allowance if it is found that the failure was occasioned
by mistake or other reasonable cause: Provided
that any dispute as to whether such failure was occasioned by mistake
or other reasonable cause shall be referred under section 69 to the
Director-General for his decision. (7) Notice
to an employer or, if there is more than one employer, to one of such
employers, may be given either in writing or orally or to the foreman
or other person under whose supervision the female employee was employed
or to any person designated for the purpose by the employer. 41. Payment
of allowance to nominee. A female
employee may nominate some other person to whom the maternity allowance
may be paid on her behalf and any payment of the maternity allowance
made to the person so nominated shall, for the purposes of this Act,
be deemed to be a payment to the female employee herself. 42. Restriction
on dismissal of female employee after eligible period. (1) Where
a female employee remains absent from her work after the expiration
of the eligible period as a result of illness certified by a registered
medical practitioner to arise out of her pregnancy and confinement
and to render her unfit for her work, it shall be an offence, until
her absence exceeds a period of ninety days after the expiration of
the eligible period, for her employer to terminate her services or
give her notice of termination of service. (2) Subject
to subsection (1), where a female employee is dismissed from her employment
with wages in lieu of notice at any time during the period of four
months immediately preceding her confinement, she shall, in computing
the period of her employment for the purposes of this Part, be deemed
to have been employed as if she had been given due notice instead of
wages in lieu thereof. 43. Conditions
contrary to Part void. Any condition
in a contract of service whereby a female employee relinquishes or
is deemed to relinquish any right under this Part shall be void and
of no effect and the right conferred under this Part shall be deemed
to be substituted for such condition. 44. Register
of allowances paid Every employer
shall keep a register, in a form to be prescribed by the Minister by
regulations made under this Act, of all payments made to female employees
under this Part and of such other matters incidental thereto as may
be prescribed by such regulations. 44A. (Omitted).
