The Constitution of the Republic of South Africa, 1996 is the supreme law the Republic. Its preamble states that we, the people of South Africa, “believe that South Africa belongs to all who live in it”. Subsequently, the Constitution strives to ensure that “every citizen in equally protected by law” and to “improve the quality of life of all citizens”. Section 25 of the Basic Conditions of Employment Act (“BCEA”) has always made provision for annual leave, sick leave, family responsibility leave and unpaid maternity leave for female employees. As our Constitution strives to promote equality and especially the best interest of children, it is not surprising that amendments to our current Labour Law regarding leave of working parents had to be made. Thanks to the provisions of the Labour Laws Amendment Act 10 of 2018 (“the Act”), the BCEA now contains sections 25A, 25B and 25C, which governs parental, adoption and commissioning parental leave respectively.
An employee, who is a parent of a child, is now entitled to at least ten consecutive days ofParental Leave. The leave will commence on the day on which the child is born, the date the adoption order is granted or the date on which a child is placed in the care of the prospective adoptive parent, whichever date occurs first.
Adoptive Leave, on the other hand, provides that an employee, who is an adoptive parent of a child who is below the age of two, is entitled to adoption leave of at least ten weeks consecutively or to the parental leavediscussed above. This distinction will be relevant in cases where the court has granted an adoptive order in favour of both adoptive parents. These parents will be entitled to choose which parent will take which form of leave. Adoption Leave will commence on the date the adoption order is granted or the date on which the child is placed in the care of the adoptive parent, whichever occurs first. The position with regards to prospective adoptive parents differs slightly. Although they are not automatically entitled to adoptive or parental leave, they may still apply for it.
Finally, Commissioning Parental Leave will apply to an employee, who is a commissioning parent in a surrogate motherhood agreement. This employee will be entitled to commissioning parental leave of at least ten weeks consecutively or the parental leave discussed above. Once again, this distinction is made because the commissioning parental agreement may have two commissioning parents. Commissioning parental leave commences on the date of birth of the child born as a result of the surrogate motherhood agreement.
Section 49 of the BCEA has been amended by this Act to ensure that a collective agreement cannot reduce the employees’ entitlement to these new forms of leave. However, in order to qualify for leave, employees are required notify the employer in writing, unless they are unable to do so, of the date on which they intend to commence leave and the date on which they plan to return to work. Notification of leave must be given at least one month prior to when they are entitled to take leave, or if that is not reasonably practicable, as soon as it is reasonably practicable.
As with maternity leave, employers will not be required to remunerate employees whilst they are on this leave, as employees will be entitled to claim benefits from the Unemployment Insurance Fund. Employers should however note that the benefits the employee is entitled to may not be reduced by payment of any parental, adoptive or commissioning parental benefits. The latter benefits must be calculated at a rate of 66% of the earnings of the beneficiary at the date of application, subject to the maximum threshold provided for by the Act. The Amendments have also made provision for the Amendment of the UIF Act to protect a contributor who has a miscarriage during the third trimester or bears a still-born child. These employees will now be entitled to a full maternity benefit of 17.32 weeks.
In conclusion, fathers, adoptive parents, parents commissioning a child from a surrogate agreement and same-sex partners, who were previously unable to take leave upon the adoption or birth of a child, will be able to do so very soon. This is encouraged as the amendments to the BCEA promotes transformation in the workplace which is in line with the Constitution. Employers are however urged to take note that these amendments to the law as they should come into force in the next few months provided the UIF are able to get their house in order.