Employment Act 1980, Act No. 5 of 1980, dated 26 September 1980, published in the Government Gazette Extraordinary No. 55 ppS48-S103. Amended by the Employment (Amendment) Act 1997, Act No. 5 of 1997, dated 28 August 1997.
New Legislation, last updated 29 March 2011. Published by the Federation of Swaziland Employers and Chamber of Commerce (FSECC) at http://www.business-swaziland.com/index.php?option=com_content&view=category&layout=blog&id=64&Itemid=83 and accessed 9 December 2011.
Social Security Programs Throughout the World - Africa 2011 - Swaziland. Published by the Social Security Administration at http://www.socialsecurity.gov/policy/docs/progdesc/ssptw/2010-2011/africa/index.html and accessed 9 December 2011.
Code of Good Practice - Employment Discrimination. Made under Section 109 of the Industrial Relations Act. Published by the Conciliation, Mediation and Arbitration Commission at www.cmac.org.sw and accessed 9 December 2011.
The maternity leave protections under the Employment Act apply to all persons to whom wages are paid or are payable under a contract of employment with any person or undertaking, contractor, corporation, company, public authority or body of persons. However, they do not apply to persons employed in the Royal Swaziland Police, the Umbutfo Swaziland Defence Force and Swaziland Prison Services or to outworkers.
Employment Act 1980 §§2, 5, 6, 95(2)
Remarks: A contract of employment is defined to mean a contract of service, apprenticeship or traineeship whether it is express or implied and, if it is express, whether it is oral or in writing.
Qualifying conditions
To qualify for maternity leave under the Employment Act, female employees, other than domestic workers, must have: (1) been in the continuous employment of the employer for 12 months or more; (2) not have taken maternity leave within the previous 24 months; and (3) delivered to her employer: (a) A certificate issued by a medical practitioner or a midwife setting forth the expected date of her confinement; (b) A certificate issued by a medical practitioner or a midwife setting forth the actual date of her confinement; or (c) Such other evidence in support of the entitlement to maternity leave as is reasonable, having regard to all the circumstances of the case.
Employment Act 1980 §102 (as amended 1997)
Duration
Compulsory leave
A female worker must take no less than six weeks’ maternity leave after confinement.
Employment Act 1980 §103
General total duration
Female workers are entitled to maternity leave of not less than 12 weeks, including not more than six weeks before and not less than six weeks after confinement.
Employment Act 1980 §103(1), (2)
Historical data (year indicates year of data collection)
2004: Twelve weeks
1998: Twelve weeks
1994: Twelve weeks
Extension
Where an employee has been granted maternity leave and the date of her confinement is a later date than stated in the certificate or other evidence delivered to the employer, being the date on which confinement was expected, her maternity leave shall be extended to include the period that elapsed between those dates.
An employee’s maternity leave may be extended by up to 6 weeks in the case illness arising out of her confinement.
Employment Act 1980 §§103(4), 104
Leave in case of illness or complications
An employee who suffers any illness arising out of her confinement, shall be granted such additional leave, not exceeding six weeks, as a medical practitioner may recommend.
Employment Act 1980 §104
RELATED TYPES OF LEAVE
Parental leave
No provisions establishing a right to parental leave identified.
Paternity leave
No provisions establishing a right to paternity leave identified.
Adoption leave
No provisions establishing a right to adoption leave identified.
RIGHT TO PART-TIME WORK
General provisions
No provisions establishing a right to part-time work identified.
CASH BENEFITS
Maternity leave benefits
Scope
The scope of the maternity cash benefit mirrors the scope of the maternity leave entitlement.
Employment Act 1980 §102
Qualifying conditions
The qualifying conditions of the maternity cash benefit mirror those which apply to the maternity leave entitlement.
The maternity cash benefit shall be paid for at least 2 weeks during the period of maternity leave.
Employment Act 1980 §102(1) (as amended 1997)
Remarks: The Federation of Swaziland Employers and Chamber of Commerce has reported in its New Legislation update (last updated 29 March 2011) that the Employment Bill 2007 has been published in the Gazette, increasing the right to maternity leave pay to 4 weeks.
Formal evidence or confirmation that the Employment Bill 2007 was in force had not been identified at the time writing.
Amount
An employee is entitled to receive full pay for at least 2 weeks of maternity leave.
Employment Act 1980 §102(1) (as amended 1997)
Historical data (year indicates year of data collection)
2009: Unpaid.
2004: Unpaid
1998: Unpaid
1994: Unpaid
Financing of benefits
The employer is to pay the cash benefit.
Employment Act 1980 §102(1) (as amended 1997)
Historical data (year indicates year of data collection)
2004: Unpaid
1998: Unpaid
1994: Unpaid
Alternative provisions
No alternative provisions identified.
Parental leave benefits
No provisions establishing a right to parental leave benefits identified.
Paternity leave benefits
No provisions establishing a right to paternity leave benefits identified.
Adoption leave benefits
No provisions establishing a right to adoption leave benefits identified.
MEDICAL BENEFITS
Pre-natal, childbirth and post-natal care
No provisions establishing a right to pre-natal, childbirth or post-natal care identified.
Social Security Programs Throughout the World - Swaziland 2011
BREASTFEEDING
Right to nursing breaks or daily reduction of hours of work
Every female employee shall be entitled to a one hour nursing break per day three months after the maternity leave.
Employment Act 1980 §103(5) (as amended 1997)
Remuneration of nursing breaks
Nursing breaks are to be paid.
Employment Act 1980 §103(5)
Transfer to another post
No relevant provisions identified.
Nursing facilities
No relevant provisions identified.
HEALTH PROTECTION
Arrangement of working time
Night work
No employer shall employ any female in any undertaking between the hours of 10pm of one day and 6am of the following day unless he obtains a certificate from the Labour Commissioner authorising him to do so.
Before issuing a certificate, the Labour Commissioner shall satisfy himself that: (a) Where female employees are required either to start or finish work between 10pm and 6am, adequate means are available for the transport of employees to their places of work before starting work and to their homes within a reasonable time after work, at the case may be; (b) The employer has provided, at the place of employment, adequate rest room facilities and facilities for eating meals; (c) Employees are given adequate opportunities for rest and meal breaks between periods employment.
The prohibition on employment women at night shall not apply: (a) In cases of emergencies which could not be controlled or foreseen, or which are not of a recruiting character and which interfere with the normal working of the undertaking; (b) In cases where the work has to do with raw materials, or materials in the course of treatment which are subject to rapid deterioration and when night work is necessary to preserve the materials from certain loss; (c) To persons holding responsible positions of a managerial or technical nature; (d) To undertaking in which only members of the employer’s immediate family are employed.
Employment Act 1980 §101(1), (3), (4)
Overtime
No relevant provisions identified.
Work on rest days
No relevant provisions identified.
Time off for medical examinations
No relevant provisions identified.
Leave in case of sickness of the child
No relevant provisions identified.
Other work arrangements
No relevant provisions identified.
Dangerous or unhealthy work
General
No relevant provisions identified.
Risk assessment
» Assessment of workplace risks
No general obligation to assess workplace risks identified. However, every employer must ensure that: (1) Every workroom in which persons are employed by him is kept clean and in sanitary condition, has adequate ventilation and circulation of fresh air, and adequate and suitable lighting; (2) There is an adequate supply of wholesome drinking water for his employees at their place of work; and (3) Sufficient and suitable sanitary conveniences are available for his employees at or near their place of work.
Employment Act 1980 §149(1), (2)
» Adaptation of conditions of work
No relevant provisions identified.
» Transfer to another post
No relevant provisions identified.
» Paid/unpaid leave
No relevant provisions identified.
» Right to return
No relevant provisions identified.
Particular risks
» Arduous work (manual lifting, carrying, pushing or pulling of loads)
No relevant provisions identified.
» Work involving exposure to biological, chemical or physical agents
No relevant provisions identified.
» Working requiring special equilibrium
No relevant provisions identified.
» Work involving physical strain (prolonged periods of sitting, standing, exposure to extreme temperatures, vibration)
No employer shall employ any female underground in any mine.
Further, every employer shall, where substantial proportion of the work being carried out by his employees can be carried out sitting, provide suitable seating for such employees.
No other relevant provisions identified.
Employment Act 1980 §§101(2), 149(3)
NON-DISCRIMINATION AND EMPLOYMENT SECURITY
Anti-discrimination measures
No employer shall, in any contract of employment between himself and an employee, discriminate against any person or between employees on grounds of race, colour, religion, marital status, sex, national origin, tribal or clan extraction, political affiliation or social status. Further, every employer should take steps to eliminate discrimination in any employment policy or practice and must promote equal opportunity at the workplace.
Particular provision is made with respect to equal pay for equal work between male and female employees. However, no treatment accorded to females in accordance with the law and in connection with the birth or expected birth of a child, or in connection with terms and conditions of employment related to retirement, marriage or death, shall be deemed to be in contravention of this prohibition.
Employment Act 1980 §§29, 96(1), 96(2) Code of Good Practice - Employment Discrimination §§2, 3, 6
Prohibition of pregnancy testing
No relevant provisions identified.
Protection from discriminatory dismissal
Except for a reason enumerated in §36 of the Employment Act, an employer shall not: (a) terminate the services of, or give notice of such termination to an employee at any time between the date the employee provides a certificate or other evidence of her entitlement to maternity leave and the date of the expiration of her maternity leave or additional leave granted; (b) give notice of termination of services to an employee so that it would expire during her maternity leave or the additional leave granted in accordance with the Employment Act, or terminate her services during such leave; (c) terminate the services of an employee or require an employee to resign on the grounds that she is pregnant; (d) require an employee to resign during any of the times referred to in paragraphs (a) and (b); (e) terminate the services of an employee unfairly, including because of the employee’s absence from duty due to sickness certified by a medical practitioner for a period not exceeding six months, except where the employer proves that, in all the circumstances of the case, it was necessary for him permanently to replace the employee at the time his services are terminated.
Employment Act 1980 §§35(3)(f), 105
Burden of proof
If the employee is claiming a breach of §35 of the Employment Act, which deems dismissing an employee because of his absence on sick leave to be unfair, the employee shall be required to prove that he was an employee to whom §35 applied at the time his services were terminated. Once that is established, the termination shall be deemed unfair unless the employer proves that: (a) the reason for the termination was one permitted by section 36; and (b) taking into account all the circumstances of the case, it was reasonable to terminate the service of the employee.
No express provisions regulating the burden of proof in relation to proceedings brought with respect to §105 of the Employment Act (which prohibits termination before or during maternity leave or on the grounds of pregnancy). However, the employer will be able to defend the proceedings if he or she proves that the termination was for a reason enumerated in §36 of the Employment Act.
Employment Act 1980 §§35, 36, 42, 105(2)
Guaranteed right to return to work
Where an employee resumes employment after being granted maternity leave or additional leave under section 104 she shall be entitled to continue in her former work or equivalent work without loss of seniority and she shall not, by reason only of the fact that she went on maternity leave, be paid lower wages or employed on less advantageous terms and conditions than those which applied to her employment before she went on leave.
Employment Act 1980 §106
Results generated on: 19th April 2024 at 06:28:11.
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