If one thing is certain, no quote better suits 2020 than that of Heraclitus, “the only constant in life is change”. Unlike the unforeseen changes which came in the wake of a once in a lifetime global pandemic, changes in South African labour legislation are slightly more constant and predictable.
This article summarises the Labour Laws Amendment Act of 2020, amendments which have been much anticipated.
The amendments make provision for additional social benefits under the Basic Conditions of Employment Act (BCEA) namely, parental leave, adoption leave, and commissioning parental leave.
Parental leave – Section 25A:
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According to this section an employee, who is a parent of a child, shall be entitled to at least ten (10) consecutive days’ parental leave.
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The employee may commence with parental leave on
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the day that the employee’s child is born; or
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the date-
i. that the adoption order is granted; or
ii. 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 date occurs first.
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An employee must notify an employer in writing, unless the employee is unable to do so, of the date on which the employee intends to-
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commence parental leave; and
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return to work after parental leave.
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Notification in terms of the above must be given-
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at least one (1) month before the-
i. employee’s child is expected to be born; or
ii. date referred to in subsection 2(b); or
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if it is not reasonably practicable to do so, as soon as is reasonably practicable.
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The payment of parental benefits will be determined by the Minister, subject to the provisions of the Unemployment Insurance Act.
In essence, this addition to the BCEA provides that an employee receive ten (10) days’ unpaid parental leave. The employee may claim UIF benefits for this period. The employee must be the parent of the child or be the lawful adoptive parent of the child. The employee may commence with parental leave upon the birth of the child or upon the adoption order having been granted, alternatively when a competent court i.e., the Children’s Court, places the child in the care of the parent, pending the finalisation of an adoption order.
It is the employee’s responsibility to notify the employer of the date on which they intend to commence with parental leave, as well as the date on which they will return to work. This notification must be in writing, should the employee be literate, and submitted at least one (1) month before the commencement of the parental leave.
Adoption leave – Section 25B:
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An employee, who is an adoptive parent of a child who is below the age of two (2), is subject to subsection (6), entitled to-
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adoption leave of at least ten (10) weeks consecutively; or
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the parental leave referred to in section 25A.
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An employee may commence adoption leave on the date-
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that the adoption order is granted; or
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that 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 the child, whichever date occurs first.
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An employee must notify an employer in writing, unless the employee is unable to do so, of the date on which the employee intends to-
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commence adoption leave; and
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return to work after adoption leave.
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Notification in terms of the above must be given-
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at least one (1) month before the date referred to in subsection (2); or
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if it is not reasonably practicable to do so, as soon as is reasonably practicable.
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The payment of adoption benefits will be determined by the Minister, subject to the provisions of the Unemployment Insurance Act.
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If an adoption order is made in respect of two adoptive parents, one of the adoptive parents may apply for adoption leave and the other adoptive parent may apply for the parental leave referred to in section 25A: Provided that the choice must be exercised by the two adoptive parents.
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If a competent court orders that a child is placed in the care of two prospective adoptive parents, pending the finalisation of an adoptive order in respect of that child, one of the adoptive parents may apply for adoption leave and the other adoptive parent may apply for the parental leave referred to in section 25A: Provided that choice must be exercised by the two adoptive parents.
Thus, should an employee legally adopt a child under the age of two (2), the employee is entitled to take ten (10) weeks’ unpaid adoption leave. The employee may claim UIF benefits for this period. The employee may commence with adoption leave upon the adoption order having been granted or once the child is placed in the care of the employee, pending the finalisation of the adoption order, by order of a competent court i.e., the Children’s Court.
An employee who intends on making use of his/her entitlement to adoption leave must notify the employer of this in the same form and manner as required with parental leave.
This section also answers a question which might have been asked whilst reading the current section, as well as the section on parental leave being, “What if I employ two employees who jointly intend on adopting a child?”. According to subsections (6) and (7), one employee will be entitled to take adoption leave and the other parental leave. It is important to note that the choice of who in such an instance shall make use of which form of leave, must be left up to the employees.
Commissioning parental leave – Section 25C:
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An employee, who is a commissioning parent in a surrogate motherhood agreement is, subject to subsection (6), entitled to-
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commissioning parental leave of at least ten (10) weeks consecutively; or
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the parental leave referred to in section 25A.
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An employee may commence commissioning parental leave on the date a child is born as a result of a surrogate motherhood agreement.
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An employee must notify an employer in writing, unless the employee is unable to do so, of the date on which the employee intends to-
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commence commissioning parental leave; and
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return to work after commissioning parental leave.
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Notification in terms of subsection (3) must be given-
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at least one (1) month before a child is expected to be born as a result of a surrogate motherhood agreement; or
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if it is not reasonably practicable to do so, as soon as is reasonably practicable.
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The payment of adoption benefits will be determined by the Minister, subject to the provisions of the Unemployment Insurance Act.
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If a surrogate motherhood agreement has two (2) commissioning parents, one of the commissioning parents may apply for commissioning parental leave and the other commissioning parent may apply for the parental leave referred to in section 25A: Provided that the choice must be exercised by the two commissioning parents.
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In this section, unless the context otherwise indicates-
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‘commissioning parent’ has the meaning assigned to it in section 1 of the Children’s Act, 2005; and ‘surrogate motherhood agreement’ has the meaning assigned to it in section 1 of the Children’s Act, 2005.
According to this section, an employee who has commissioned a surrogate to carry to term a child in terms of a surrogate motherhood agreement is entitled to ten (10) weeks’ unpaid commissioning parental leave. The employee may claim UIF benefits during this period. The employee may commence with commissioning parental leave upon the birth of the child and must notify the employer of his/her intention to take such leave in the same form and manner as with parental leave.
As with adoption leave, two employees jointly commissioning a surrogate may decide who shall take commissioning parental leave and who shall take parental leave.
The amendments continue by repealing the entitlement of employees to take family responsibility leave for the birth of a child, as this entitlement has been replaced with the entitlement to parental leave for such an occasion.
Section 49 of the BCEA has also been amended to expressly prohibit the reduction of an employee’s entitlement to parental, adoptive or commissioning parental leave by means of a collective agreement concluded in a bargaining council.
All of the aforementioned amendments have already come into effect and employers are advised to ensure that standing leave policies are amended and communicated to employees, as well as contracts updated for future use.
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