ALL CATEGORIES OF EMPLOYEE-PARENTS TO BE PROTECTED REGARDING THE BIRTH OF A CHILD

By Shelley Wilson Thursday, November 23, 2017
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Parliament’s Portfolio Committee on Labour has issued an invitation for members of the public to submit comments on the Labour Laws Amendment Bill 29, 2017 (which is a redraft of the Labour Laws Amendment Bill, 2015) and its proposed amendments to the Basic Conditions of Employment Act, 1997 (BCEA) and Unemployment Insurance Act, 2001 (UIA).  The proposed amendments introduce a statutory right to parental, adoption and commissioning parental leave for employees who become parents of a child and the right to claim payment of leave benefits in this regard from the Unemployment Insurance Fund (UIF).

As it currently stands, the BCEA only provides for a statutory entitlement for female employees to four consecutive months’ unpaid maternity leave and for all employees to three days’ paid family responsibility leave when, among others, the employee’s child is born, falls ill or dies. The Labour Court has highlighted the shortfalls in the BCEA because it does not provide protection to all categories of employees who are parents, for example, it does not provide protection where employees become parents through adoption or surrogacy.

The Bill intends addressing this issue so that male employees, adoptive parents and commissioning parents will no longer be disadvantaged by a lack of leave benefits as relates to their parenthood.

Essentially, the Bill proposes that:

  • an employee is entitled to at least 10 consecutive days parental leave from the day that the employee’s child is born, the day that an adoption order is granted or that a child is placed in the care of a prospective adoptive parent by a competent court, pending the finalisation of an adoption order in respect of that child, whichever occurs first (which applies to non-birth giving parents such as fathers and non-primary caregivers);
  • an employee who is an adoptive parent of a child below the age of two years is entitled to adoption leave of at least 10 weeks consecutively, or parental leave which may commence on the day that the adoption order is granted or that a child is placed in the care of a prospective adoptive parent by a competent court, pending the finalisation of an adoption order in respect of that child, whichever occurs first (where the child is older than two years old, the adoptive parent may claim parental leave);
  • an employee who is a commissioning parent in a surrogate motherhood agreement is entitled to commissioning parental leave of at least 10 weeks’ consecutively, or parental leave which may commence on the day that the child is born as a result of a surrogate motherhood agreement;
  • a UIF contributor who has a miscarriage during the third trimester or bears a still-born child is entitled to a full maternity benefit of 17.32 weeks from the UIF;
  • the payment of parental, adoption and commissioning parental leave benefits will be claimed from the UIF in terms of the provisions of the UIA;
  • parental, adoption and commissioning parental benefits must be paid at a rate of 66% of the earnings of the beneficiary at the date of application, subject to the maximum income threshold; and
  • a collective agreement may not reduce an employee’s entitlement to parental, adoption or commissioning parental leave.

The Bill also introduces prescribed requirements and application processes in the UIA should an employee wish to claim the parental, adoption and commissioning parental leave benefits from the UIF.

The Bill does not have legal force until it is enacted but it indicates the Legislature’s acknowledgment of the important role that employee-parents play, irrespective of their gender roles, in the care of their children and affirms the view that all categories of employee-parents should be afforded protection in this regard.

Please click here to access the Bill.

If you have any questions regarding this topic, please contact Shelley Wilson or any of the partners in our Employment and Benefits Practice.