Amendment Bill Highlights: Paternity, surrogacy & adoption leave

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Currently, the Basic Conditions of Employment Act (BCEA), section 27 thereof, provides for three days’ family responsibility leave for employees to spend time with their new-born babies. Should they require more time with their babies, employees have the option of applying for annual leave, in addition to their three days’ family responsibility leave entitlement (per leave cycle). The three days’ family responsibility leave for when a child is born, however, is only applicable to employees who have been employed for at least 4 months and who work at least 4 days a week for the same employer. Even though this section of the BCEA is non-gender-specific, it provides leave of only three days. The BCEA currently does not make any provision for paternity leave as such, neither does it make provision for leave in cases of adoption or surrogacy (unless the employee herself is the surrogate).

The BCEA also currently provides for 4 months unpaid maternity leave, which is covered by the Unemployment Insurance Fund. Even though the BCEA, in section 25 refers to “an employee”, which is non-gender-specific, it goes further and categorically refers to “her” and “she”. Section 25 (3) of the BCEA states that “no employee may work for six weeks after the birth of her child, unless a medical practitioner or midwife certifies that she may do so”, referring to the actual employee who is pregnant. Section 25 also refers to “an employee who has a miscarriage” and “on a date from which a medical practitioner certifies that it is necessary for the employees’ health”. Even section 187 (1) (e) of the Labour Relations Act refers to an automatic unfair dismissal as a dismissal relating to the “employees’ pregnancy, intended pregnancy, or any other reason relating to her pregnancy”.

This means that the our current laws governing leave for child birth leave little room for surrogate parenthood, same sex parents, parents who adopt, and essentially fathers in heterosexual relationships / marriages, etc.

However, parliament recently adopted the Labour Laws Amendment Bill which aims to regulate parental leave. This includes parental leave paid for by the Unemployment Insurance Fund (UIF). This made history in that it is the very first time that a private members’ bill is adopted by the National Assembly. The bill was introduced by African Christian Democratic Party (ACDP) MP Cheryllyn Dudley, and received support across the political spectrum.

The bill essentially allows for “parental leave”, “adoption leave”, and “commissioning parental leave”.

Parental Leave

  • Includes 10 days’ consecutive leave to an employee who is a parent of a child. This leave may be taken from the day that the child is born or the day the adoption order is granted

Adoption leave

  • Includes 10 consecutive weeks’ leave to an employee who is an adoptive parent of a child who is below the age of two. This leave may be taken from the day the adoption is granted.

Commissioning parental leave

  • Refers to an employee who is a commissioning parent in a surrogate motherhood agreement

  • It includes 10 consecutive weeks’ leave and may be taken from the date the child is born as a result of a surrogate motherhood agreement

Adoptive parents and surrogate parents thus have the option of taking parental leave or adoption leave / commissioning parental leave, as the case may be, but should an adoption order be made in respect of two adoptive parents, one may apply for adoption leave and the other for parental leave. Similarly, should a surrogate motherhood agreement have two commissioning parents, one may apply for commissioning parental leave and the other for ordinary parental leave.

Payment for each of these categories of leave is said to be covered by the Unemployment Insurance Fund Act.

The Bill is currently with the National Council of Provinces (NCOP), and should it be approved, will await the Presidential Signature, after which it will be seen as an Act of Parliament and become a law of the land.

Even though it could be said that should the bill be signed into law, it would create better family bonds, one can also deduce that it would have various major effects on the employer:

  • Employers will have to cope with fewer employees in their workforce. Even though the unemployment rate should also be taken into account, it is notable that in 2016, 969,415 live births were registered in South Africa, which is equal to 1,938,830 parents (and ultimately employees)

  • Employers will have to be more aware of the labour laws surrounding fixed term contracts when needing to temporarily replace parents who are on leave for child birth

  • Amendments will have to be made to contracts of employment

  • The demand for benefits from the UIF will increase, meaning that employers who do not register their employees’ with the Unemployment Insurance Fund and who have flown under the radar, will be more prone to exposure

  • Payroll and HR systems will have to be updated and adapted to accommodate the new types of leave

  • Employers will need to make sure that they understand the amendments and apply them correctly

In a world where employers and employees face forever evolving social values, acceptances and beliefs regarding parenthood, gender, and the changing paradigm of the modern family, the Bill could be seen as a step in the right direction, but could it be argued that the disparity between maternity, commissioning parental leave, ordinary parental leave and adoption leave could open the door to possible claims of unfair discrimination? This remains to be seen.

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