PART 9 MATERNITY PROTECTION AND BENEFITS
AND CHILDCARE LEAVE FOR PARENT |
76.—(1) Subject to this section, every female employee is entitled to absent herself from work —| (a) | during —| (i) | the period of 4 weeks immediately before her confinement; and | | (ii) | the period of 8 weeks immediately after her confinement; |
| | (b) | during a period of 12 weeks, as agreed to by her and her employer, commencing —| (i) | not earlier than 28 days immediately preceding the day of her confinement; and | | (ii) | not later than the day of her confinement; or |
| | (c) | during —| (i) | a period of 8 weeks, as agreed to by her and her employer, commencing —| (A) | not earlier than 28 days immediately preceding the day of her confinement; and | | (B) | not later than the day of her confinement; and |
| | (ii) | one or more than one period each of such duration as agreed between the employee and her employer but in aggregate no shorter than as reckoned in accordance with the Fifth Schedule or 24 days, whichever is the lower, all of which must be taken within the period of 12 months commencing on the day of her confinement. [26/2013] |
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(1A) Subject to this section and section 77, every female employee is entitled to receive payment from her employer at her gross rate of pay for any of the following periods (called in this Part the benefit period):| (a) | where subsection (1)(a) applies, the period of 4 weeks referred to in subsection (1)(a)(i) and the first 4 weeks of the period referred to in subsection (1)(a)(ii); | | (b) | where subsection (1)(b) applies, the first 8 weeks of the period referred to in subsection (1)(b); | | (c) | where subsection (1)(c) applies, the period of 8 weeks referred to in subsection (1)(c)(i). [27/2015] |
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| (2) A female employee who delivers a child before 1 May 2013, and whose estimated delivery date for her confinement in respect of that child (as certified by a medical practitioner) is before 1 May 2013, is not entitled to any pay during the benefit period if she has served her employer for less than 90 days immediately preceding the day of her confinement. [12/2013] |
(2A) A female employee who delivers a child —| (a) | on or after 1 May 2013 but before 22 August 2015; or | | (b) | before 1 May 2013 but whose estimated delivery date for her confinement in respect of that child (as certified by a medical practitioner) is on or after 1 May 2013, |
| is not entitled to any pay during the benefit period if she has served her employer for less than 3 months immediately preceding the day of her confinement. |
[12/2013; 27/2015] |
(2B) A female employee who delivers a child —| (a) | on or after 22 August 2015; or | | (b) | before 22 August 2015 but whose estimated delivery date for her confinement in respect of that child (as certified by a medical practitioner) is on or after that date, |
| is not entitled to any pay during the benefit period if she has not served her employer for a period of at least 3 months preceding the day of her confinement. |
[27/2015] |
| (3) Where a female employee has worked in her employment for any day during the benefit period before her confinement, she is entitled to receive in addition to her gross rate of pay for that day an amount that is equivalent to a day’s pay at the gross rate of pay or to absent herself from work on another day at the end of the benefit period. |
(4) Subject to any collective agreement or award to the contrary, a female employee is not entitled to any payment under subsection (1A) for any confinement if, at the time of the confinement —| (a) | she has 2 or more living children; and | | (b) | those children were born during more than one previous confinement. |
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| (5) Subsection (4) does not apply to such class or classes of employees as the Minister may, by notification in the Gazette, specify. |
(5A) Where the employment of a female employee is terminated because she resigns before she has exercised, wholly or partly, her entitlement to absent herself from work during a period mentioned in subsection (1)(a), (b) or (c), she forfeits the following upon termination of her employment:| (a) | that entitlement (or the balance of that entitlement) to absent herself from work; | | (b) | the entitlement under this section (if any) to receive payment from her employer at her gross rate of pay in respect of the forfeited period of absence from work under paragraph (a). [19/2021] |
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| (6) Where the employment of a female employee is terminated (whether by dismissal, upon the completion of her contract of service, or for any reason other than by resignation) before she has exercised, wholly or partly, her entitlement to absent herself from work during a period referred to in subsection (1)(c)(ii), she forfeits that entitlement (or the balance thereof) upon the termination of her employment. [19/2021] |
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| Payments to include holidays, etc. |
| 77.—(1) The payment referred to in section 76 must be paid for every day of the benefit period, including holidays, but not any day during the benefit period on which the female employee takes no‑pay leave. [27/2015] | (2) Nothing in this section requires an employer to pay to a female employee an extra day’s salary for a holiday which falls within the benefit period. |
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| When payment is to be made |
78.—(1) In the case of a female employee who is a daily‑rated employee, the payment referred to in section 76 must be paid in 2 instalments, the first for the period up to and including the day of confinement, to be paid within 7 days from the date of confinement, and the second, for the period after confinement, to be paid within 7 days from the end of that period.| (2) In the case of any other female employee, the payment must be paid at such time as the salary earned by the employee under her contract of service is due to be paid to her. |
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| Payment of benefit on death of female employee before confinement |
79.—(1) If a female employee, after giving notice to her employer under section 80(1), abstains from work in expectation of her confinement and dies from any cause before her confinement, the employer must pay to the person nominated by her under section 80(4) or, if there is no such person, to her personal representative a sum of money at the rate prescribed under section 76 from the date immediately following the last day on which she worked to the day immediately preceding the day of her death and except in the circumstances mentioned in this subsection no employer is liable to pay any sum in respect of a period exceeding 30 days.| (2) If a female employee dies from any cause on or after the day of her confinement and before any payment to which she is entitled has been paid to her, the employer must pay to the person nominated by her under section 80(4) or, if there is no such person, to her personal representative any sum of money to which she was on the date of her death entitled in respect of the period up to the day of confinement and in respect of the period after confinement up to the day immediately preceding the day of her death. |
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80.—(1) A female employee must, at least one week before absenting herself from work in accordance with section 76, give notice to her employer specifying the date on which she intends to commence absenting herself from work.| (2) A female employee who has been confined must, as soon as practicable, inform her employer of the date on which she was confined. |
| (3) Any female employee who omits to give notice as required under subsection (1) or fails to inform her employer as required under subsection (2) is entitled to only half the amount of any payment to which she is entitled to under this Part unless she was prevented by any sufficient cause from giving the notice. |
| (4) A female employee may at any time in writing nominate some other person to whom any payment to which she is entitled under this Part may be paid on her behalf; and any such payment made to the person so nominated is deemed, for the purpose of this Act, to be payment to the female employee who nominated the person. |
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| Dismissal during absence prohibited |
| 81. Without affecting sections 84 and 84A, when a female employee absents herself from work in accordance with the provisions of this Part it is not lawful for her employer to give her notice of dismissal during her absence or on such a day that the notice will expire during her absence. |
| Employment after confinement |
| 82. Any employer who knowingly employs a female employee at any time during the period of 4 weeks immediately following her confinement shall be guilty of an offence. |
| 83. If a female employee works for any other employer after she has absented herself from work under the provisions of this Part, she forfeits her claim to any payment to which she is entitled under this Part and is liable to dismissal. |
| Right to benefit unaffected by notice of dismissal given without sufficient cause |
84.—(1) Without affecting sections 81 and 84A, a notice of dismissal given without sufficient cause by an employer to a female employee which —| (a) | if given before 1 May 2013, is given —| (i) | within a period of 6 months preceding the estimated delivery date for her confinement (as certified by a medical practitioner); or | | (ii) | within a period of 6 months preceding the date of her confinement; |
| | (b) | if given on or after 1 May 2013, is given at any time of her pregnancy (as certified by a medical practitioner before the notice of dismissal is given), where the female employee has served the employer for a period of 3 months or more immediately preceding the day the notice is given; or | | (c) | if given on or after 1 May 2013 but before 1 August 2013 and where the female employee has served the employer for a period of less than 3 months, is given —| (i) | within a period of 6 months preceding the estimated delivery date for her confinement (as certified by a medical practitioner); or | | (ii) | within a period of 6 months preceding the date of her confinement, |
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| does not have the effect of depriving her of any payment to which, but for that notice, she would have been entitled or would, on or before the date of her confinement, have become entitled to under this Part. |
[12/2013] (1A) In any case where there are 2 or more estimated delivery dates (each certified by a medical practitioner) for the confinement of a female employee, the estimated delivery date that is relevant for the purposes of subsection (1) is the estimated delivery date —| (a) | which is certified by a medical practitioner before the notice of dismissal is given by her employer; and | | (b) | the date of such certification of which is closest to the date the notice of dismissal is given. |
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(2) Subject to section 3 of the Employment Claims Act 2016, where a female employee in the circumstances mentioned in subsection (1)(a), (b) or (c) considers that a notice of dismissal given to her was not given for sufficient cause, the female employee may lodge a claim, under section 13 of that Act, for either of the following remedies:| (a) | reinstatement in her former employment; | | (b) | compensation. [55/2018] |
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(3) If a Tribunal hearing the claim is satisfied that the female employee has been dismissed without sufficient cause, the Tribunal may, despite any rule of law or agreement to the contrary —| (a) | in a claim for reinstatement of the employee in her former employment, direct the employer —| (i) | to reinstate the employee in her former employment; and | | (ii) | to pay the employee an amount equivalent to the wages that the employee would have earned, if she had not been dismissed by the employer; or |
| | (b) | in a claim for compensation, direct the employer to pay, as compensation to the employee, an amount of wages determined by the Tribunal to be just and equitable having regard to all the circumstances of the case. [55/2018] |
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| Right to benefit unaffected by notice of dismissal given on ground of redundancy or by reason of reorganisation of employer’s profession, business, trade or work |
84A.—(1) Without affecting sections 81 and 84, a notice of dismissal given to a female employee by her employer on the ground of redundancy or by reason of any reorganisation of her employer’s profession, business, trade or work —| (a) | if given before 1 May 2013, is given —| (i) | within a period of 3 months preceding the estimated delivery date for her confinement (as certified by a medical practitioner); or | | (ii) | within a period of 3 months preceding the date of her confinement; |
| | (b) | if given on or after 1 May 2013, is given at any time of her pregnancy (as certified by a medical practitioner before the notice of dismissal is given), where the female employee has served the employer for a period of 3 months or more immediately preceding the day the notice is given; or | | (c) | if given on or after 1 May 2013 but before 1 August 2013 and where the female employee has served the employer for a period of less than 3 months, is given —| (i) | within a period of 3 months preceding the estimated delivery date for her confinement (as certified by a medical practitioner); or | | (ii) | within a period of 3 months preceding the date of her confinement, |
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| does not have the effect of depriving her of any payment to which, but for that notice, she would have been entitled or would, on or before the date of her confinement, have become entitled to under this Part. |
[12/2013] (2) In any case where there are 2 or more estimated delivery dates (each certified by a medical practitioner) for the confinement of a female employee, the estimated delivery date that is relevant for the purposes of subsection (1) is the estimated delivery date —| (a) | which is certified by a medical practitioner before the notice of dismissal is given by her employer; and | | (b) | the date of such certification of which is closest to the date the notice of dismissal is given. |
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| (3) The payment referred to in subsection (1) is in addition to any retrenchment benefit or other payment to which the female employee is entitled under the terms of her contract of service or under any other written law. |
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| 85. [Repealed by Act 12 of 2013] |
| 86. Any contract of service whereby a female employee relinquishes any right to maternity benefit under this Part is void insofar as it purports to deprive her of that right or to remove or reduce the liability of any employer to make any payment under this Part. |
87.—(1) Any employer who —| (a) | fails, without reasonable cause, to grant maternity leave under this Part to a female employee who is entitled to and requests for the leave; | | (b) | fails to pay the employer’s female employee in accordance with any of the provisions of this Part (other than section 87A); or | | (c) | acts in contravention of section 81, |
| shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $5,000 or to imprisonment for a term not exceeding 6 months or to both. |
[12/2013] | (2) Any employer who is guilty of an offence under section 82 shall be liable on conviction to a fine not exceeding $5,000 or to imprisonment for a term not exceeding 6 months or to both. [12/2013] |
| (3) Where an employer who is convicted or found guilty of an offence under subsection (1)(a), (b) or (c) or section 82 is a repeat offender, the employer shall be liable on conviction to a fine not exceeding $10,000 or to imprisonment for a term not exceeding 12 months or to both. [12/2013] |
(4) For the purposes of subsection (3), a person is a repeat offender in relation to an offence under subsection (1)(a), (b) or (c) or section 82 if the person who is convicted or found guilty of an offence under subsection (1)(a), (b) or (c) or section 82 (called the current offence) has been convicted or found guilty of —| (a) | an offence under subsection (1)(a), (b) or (c) or section 82; or | | (b) | an offence under section 17(1) of the Child Development Co‑Savings Act 2001 in force before, on or after 1 May 2013, |
| on at least one other occasion on or after 1 May 2013 and before the date on which the person is convicted or found guilty of the current offence. |
[12/2013] |
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| Childcare leave for parent |
87A.—(1) Subject to subsection (2), where any employee —| (a) | has served an employer for a period of not less than 3 months; and | | (b) | has any child below 7 years of age at any time during any relevant period, |
| the employee is entitled to childcare leave of 2 days for that relevant period. |
(2) An employee —| (a) | is not entitled to more than 14 days of childcare leave in respect of any child; and | | (b) | must —| (i) | take his or her first entitlement of childcare leave of 2 days for a relevant period in that relevant period or the next succeeding relevant period; and | | (ii) | then take his or her next and each subsequent entitlement of childcare leave of 2 days for a relevant period in the next succeeding relevant period and in each subsequent succeeding relevant period, respectively. |
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| (3) The childcare leave is in addition to the rest days, holidays, annual leave and sick leave to which an employee is entitled under sections 36, 88, 88A and 89, respectively. [55/2018] |
(4) An employer must grant, and an employee who is entitled to childcare leave must take, the entitlement of childcare leave of 2 days for a relevant period not later than the last day of that relevant period, and any employee who fails to take that leave by that day —| (a) | thereupon ceases to be entitled to that leave; and | | (b) | is not entitled to any payment in lieu thereof. |
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| (5) An employer must pay an employee who is entitled to childcare leave his or her gross rate of pay for every day of such leave that is taken by the employee. |
| (5A) Despite subsection (5), an employee is not entitled to take paid childcare leave on a day the employee takes no-pay leave. [27/2015] |
(6) If the employment of an employee who is entitled to childcare leave is terminated (whether by resignation or dismissal, upon the completion of his or her contract of service, or for any other reason) before he or she has taken the entitlement of childcare leave of 2 days for a relevant period, the employee —| (a) | ceases to be entitled to that leave upon the termination of his or her employment; and | | (b) | is not entitled to any payment in lieu thereof. |
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| (7) Any employer who contravenes subsection (5) shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $5,000 or to imprisonment for a term not exceeding 6 months or to both. [12/2013] |
| (7A) Any employer who fails, without reasonable cause, to grant childcare leave to an employee who is entitled to and requests for the leave shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $5,000 or to imprisonment for a term not exceeding 6 months or to both. [12/2013] |
| (7B) Where an employer who is convicted or found guilty of an offence under subsection (7) or (7A) is a repeat offender, that employer shall be liable on conviction to a fine not exceeding $10,000 or to imprisonment for a term not exceeding 12 months or to both. [12/2013] |
(7C) For the purposes of subsection (7B), a person is a repeat offender in relation to an offence under subsection (7) or (7A) if the person who is convicted or found guilty of an offence under subsection (7) or (7A) (called the current offence) has been convicted or found guilty of —| (a) | an offence under subsection (7) or (7A); | | (b) | an offence under section 12B(12) or (14) of the Child Development Co‑Savings Act 2001 in force before, on or after 1 May 2013; or | | (c) | an offence under section 12B(13) of the Child Development Co‑Savings Act 2001, |
| on at least one other occasion on or after 1 May 2013 and before the date on which that person is convicted or found guilty of the current offence. |
[12/2013] |
(8) In this section —“child”, in relation to an employee, includes —| (a) | any adopted child and stepchild of the employee; and | | (b) | any child to whom the employee is providing care, protection and supervision as a foster parent under a voluntary care agreement as mentioned in section 15 of the Children and Young Persons Act 1993, or an order under section 54(1)(b) or 56(2), or section 57 (read with section 56) of that Act; |
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“relevant period”, in relation to an employee, means —| (a) | any period of 12 months as is agreed to by the employee and his or her employer; or | | (b) | where there is no such agreement, a calendar year. [30/2019] |
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