The Basic Conditions of Employment Act (BCEA) and the Unemployment Insurance Act provides only for protection of maternity and parental rights of biological parents and female employees. Currently, fathers are only entitled to 3 days of family responsibility leave at the birth of their children. Biological mothers are entitled to at least 4 months’ maternity leave.
The lack of extensive parental leave provisions in South African law came to the fore in the labour court case of MIA v Information Technology Agency (Pty) Ltd. In this case, the employee entered into a civil union with his spouse in accordance with the provisions of the Civil Unions Act. They decided to start a family and entered into a surrogacy-motherhood agreement. The employee decided to perform the role ordinarily performed by the birthmother. In anticipation of the birth of their child, the employee applied for 4 months’ maternity leave. The employer refused to grant him this leave on grounds that the employee is not the biological mother of the child. The employee applied to the Labour Court for an order to direct the employer to grant the maternity leave and argued that the employer’s refusal amounted to unfair discrimination on the grounds of gender, sex, family responsibilities and sexual orientation. The court agreed and ordered the employer to grant the leave. The court ruled that there is no reason why an employee in the position of the employee should not be entitled to maternity leave and equally no reason why such maternity leave should not be for the same duration as maternity leave to which a natural mother is entitled. The court also ruled that entitlement to maternity leave is not solely linked to the welfare and health of the mother, but is also connected to the child’s best interests.
The Labour Court pointed out how South African legislation did not keep track with the developments in other spheres of social development and related legislation. By not making provision for parental leave for all potential ‘parents’ in its ‘family law’, it failed to achieve the objectives of the Constitution with regard to the rights of children and parents. Amendments to the Civil Union Act 17 of 2006 and the Children’s Act created the situation where persons in same-sex relationships could become parents by way of adopting children or enter into surrogate-motherhood agreements. Legislation still does not provide for the right to parental leave for these parents.
As a result of the Labour Court’s decision and a 10-year long debate on parental leave, a draft Labour Laws Amendment Bill was introduced and tabled in the National Assembly last year. It intends to amend current legislation in order to provide for parental leave for adoptive and commissioning parents. It further intends to provide for the payment of benefits and commissioning parental benefits from the Unemployment Insurance Fund (UIF).
If the Bill is approved and becomes law, here’s what will change:
- An employee who is a parent and who is not entitled to maternity leave is entitled to 10 consecutive days of parental leave when that employee’s child is born or when an adoption order is granted.
- An employee who is the adoptive parent of a child younger than 2 years is entitled to adoption leave of 2 months and 2 weeks consecutively. If there are 2 adoptive parents, 1 is entitled to adoptive leave and 1 is entitled to parental leave.
- An employee who is a commissioning parent in a surrogate-motherhood agreement is entitled to commissioning parental leave of 2 months and 2 weeks consecutively. If there are 2 commissioning parents, 1 is entitled to commissioning parental leave and 1 is entitled to parental leave.
These employees can claim from the UIF, though one can only imagine the additional pressure this will put on the already congested UIF system.
In is difficult to say when the Bill in its current form or in an amended form will become law. The parliamentary process is in its initial stage and there is still a long way to go. SEESA will keep you informed on the matter’s progress.