ENTRENCHING THE RIGHT TO MATERNITY LEAVE

Citation(2006) 18 SAcLJ 398
Published date01 December 2006
Date01 December 2006
AuthorRavi CHANDRAN LLB (Hons) (National University of Singapore), LLM (Cambridge); Associate Professor, National University of Singapore Business School.

1 Perhaps more than any other issue in employment law, the issue that has in recent times dominated the local press1 is maternity leave and among other things it has been reported that the number of women seeking the help of the Ministry of Manpower in relation to maternity leave-related disputes has risen.2 This article looks at the issues surrounding the right to maternity leave in Singapore and queries whether it is time for change. Some comparisons are made to the position in Hong Kong and Malaysia, where appropriate. International standards and conventions are also referred to. However, it is not the aim of this article to look into certain other more general matters such as the introduction of general anti-discriminatory legislation.

I. The basic statutory position

2 The Employment Act3 is one of the two statutes4 governing maternity leave in Singapore. All sections referred to in this article are with reference to the Employment Act unless otherwise stated. Section 76(1) provides that every female employee shall be entitled to absent herself from work:

(a) during —

(i) the period of 4 weeks immediately before her confinement;5 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,6 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 further periods, not exceeding 24 days7 in the aggregate, as agreed to by her and her employer, which shall be within the period of 6 months commencing on the day of her confinement.

3 This then is the basic provision relating to maternity leave under the Employment Act. However, the Employment Act does not apply to all employees.8 Nonetheless, by virtue of the Children Development Co-Savings Act, even employees9 not covered by the Employment Act are covered and are conferred a similar10 right.11

4 However, for employees covered under the Employment Act, the employee concerned would not be entitled to maternity leave if she has two or more living children who were born in more than one previous confinement.12 Thus if an employee has a third child and already has two living children born in two different confinements, she would not be entitled to maternity leave under the Employment Act. In contrast, under the Children Development Co-Savings Act, a female employee would be entitled to maternity leave and pay provided she has fewer than four other living children at the time of her confinement.13 Thus the female employee in the earlier illustration, while she would not be able to claim

maternity leave in respect of her third child under the Employment Act,14 would be able to do so under the Children Development Co-Savings Act, provided the other requirements15 are satisfied. Thus taking both statutes together, subject to two minor exceptions,16 a female employee would not be entitled to maternity leave or pay when she has more than four living children. This is in contrast with the position in Hong Kong where there is no limit.17 In Malaysia, there is a limit, but it is greater, namely five surviving children.18 It may also be noted that there are no limits under the relevant international standards and conventions.19 Given that the birth rate in Singapore has not been very encouraging for quite a long time,20 it is difficult to see why maternity leave and pay should generally be limited to four children. This is especially so when one considers the fact that for the third child and fourth child, though the employer pays, he gets a reimbursement from the government.21 Further, since an employer is unlikely to be faced with many such employees, there is unlikely to be a considerable disruption to his business either.

II. The service period
A. The 180-day rule

5 However, the entitlement to maternity leave under the Employment Act is subject to a further requirement as set out in s 76(2). Section 76(2) provides that a female employee who has served an employer for less than 180 days immediately preceding the day of the confinement shall not be entitled to pay22 during the benefit period. Thus

if a female employee covered by the Employment Act has served the employer for less than 180 days immediately preceding the day of the confinement, while she would be entitled to maternity leave, she would not be entitled to payment during that period.

6 On the other hand, for employees claiming under the Children Development Co-Savings Act, reading s 9A(1) with sub-s 9A(1)(d), an employee would be entitled to leave and pay only if she has served the employee for a period not less than 180 days immediately preceding the day of the confinement. Thus if a female employee has served the employer for less than 180 days immediately preceding the day of the confinement, she would not even be entitled to any maternity leave under the Children Development Co-Savings Act. It is not at all clear why there should be a difference between the two statutes and the position under the Employment Act seems more equitable, assuming of course it is necessary to retain the reference to the 180-day period in the first place.23

B. Must the period be continuous?

7 In relation to the 180-day period, the question may also arise, whether this has to be a continuous period of 180 days. For instance, a department store may hire temporary workers as and when there is a need and such a worker may have worked for 180 days over a longer period of time, such as over 12 months. In such a situation, would that worker be entitled to maternity benefits? It is likely that period has to be a continuous period and not one that has breaks in between as the use of the words “immediately preceding”, suggests that the 180 days cannot be spread out over a longer period of time. Thus casual workers who are employed as and when there is work are unlikely to be covered. This is also likely to be the position in Hong Kong where maternity rights are based on there being a “continuous contract”.24 In contrast, in Malaysia, casual workers are included provided the worker “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”.25

C. Service under different contracts

8 The question may also arise whether, if an employee, who has been working for the company for a continuous period exceeding 180 days immediately preceding the day of the confinement, signs a new contract with the company, for instance, 100 days before the confinement, would the new contract mean that she would not have fulfilled the 180-day requirement? Since s 76(2)26 uses the word “served” as opposed to “worked under a contract”, it is likely that the employee would still be so entitled. The position in Hong Kong and Malaysia is also not entirely clear in this respect. Nonetheless, it would be better if the matter was expressly clarified in the section itself.

D. Applicability to specific types of employees and related issues

9 The question may also arise whether these benefits apply to employees on probation. Since there is no specific exclusion and since probationary employees are employees nonetheless, it is most likely that they are covered. The question may also arise whether maternity leave is applicable to employees on a fixed term contract.27 If the employee is truly on a fixed term contract, it may argued that the expectation of the parties is that the employee should be performing work for that fixed period and should not be going on long maternity leave. However, in the light of the fact that it is provided that any contract of service whereby a female employee relinquishes any right to maternity benefit shall be null and void,28 it is likely that employees on fixed term contracts are also entitled to maternity leave.

10 However, in both situations, the question could arise, what if the employee’s fixed term contract or probationary period comes to an end

after the start of, but before the end of, the maternity leave and the employee is not retained in the company thereafter? Is the employer still obliged to pay the employee for the rest of the maternity leave?

11 Strangely, it may be possible to make an argument in the affirmative by reference to s 76(6).29 Section 76(6) provides:

Where the employment of a female employee is terminated (whether by resignation or dismissal, upon the completion of her contract of service, or for any other reason) 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 shall forfeit that entitlement (or the balance thereof) upon the termination of her employment.

12 Since s 76(6) is only with reference to s 76(1)(c)(ii),30 it may be argued that if the employee were to claim her leave under the other sections, namely, ss 76(1)(a) or s 76(1)(b),31 she would be entitled to do so, even if the employment contract comes to an end before the expiration of the leave. This would mean that the correct test is whether the female was an employee of the employer at the start of her maternity leave and not whether she was one thereafter. If she was an employee at that relevant point, she would still be entitled, provided she meets the other requirements such as having served the employer for a period not less than 180 days immediately preceding the day of the confinement.

13 However, this would also mean that if an employee resigns from the job immediately after the confinement (though this is unlikely), then she would still be entitled to the...

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