- Basic Conditions of Employment Act, 1997 (“BCEA”) by adding new statutory rights pertaining to parental, adoption and commissioning parental leave (“surrogacy leave”) for employee parents; and
- Unemployment Insurance Act, 2001 (“UIA”) wherein employee parent will be entitled to claim the aforementioned leave financial benefits from the Unemployment Insurance Fund (“UIF”).
Currently, in terms of the BCEA, female employees are entitled to 4 consecutive months’ unpaid maternity leave and all employees are entitled to 3 days’ paid family responsibility leave per annual leave cycle when a child is born. The BCEA is lacking in that it does not adequately cater for male employee parents and does not grant statutory leave entitlements to employee parents, in particular same-sex/gender partners, who adopt a child or in cases of surrogacy.
The Bill seeks to address the following issues:
- employees, who are parents and who are not entitled to maternity leave, are entitled to 10 consecutive days unpaid parental leave (“parental leave”’) from the date the employee’s child is born (this type of leave is commonly referred to as “paternity leave”), the date that an adoption order is granted or that a child is placed in the care of a prospective adoptive parent pending the finalization of an adoption order (in respect of the adoption, whichever date occurs first);
- employees who adopt a child below the age of 2 are entitled to 10 weeks consecutive unpaid adoption leave or parental leave. Adoption leave will commence on the day that the adoption order is granted or that a child is placed in the care of a prospective adoptive parent pending the finalization of an adoption order (in respect of the adoption, whichever date occurs first). The adoptive parents must decide which one of them will take adoption leave and which one will take parental leave;
- an employee who is the commissioning parent (whether the parent is male of female) in a surrogacy motherhood agreement is entitled to 10 weeks’ surrogacy leave unpaid leave which shall commence on the date on which the child is born. The commissioning parents must decide which one of them will take surrogacy leave and which one will take parental leave;
- a collective agreement may not in any way limit an employee’s entitlement to the aforementioned leave; and
- the proviso in the BCEA that an employee may take family responsibility leave when that employee’s child is born will no longer apply.
Amendments to the UIA allow for employee parents in the aforementioned scenarios to claim from the UIF at the rates as determined by the UIA. This is the same with the current status of maternity leave which is unpaid by the employer but which entitles the female employee to claim a portion of her salary from the UIF.
From a non-discriminatory, equality and international law perspective, the Bill is a step in the right direction and it is progressive in nature in that:
- it acknowledges the rights and offers protection to employee parents irrespective of sex or gender and whether one is a biological parent or not;
- it recognizes different types of family structures beyond the traditional family structure.
Certainly employers may choose to:
- offer paid leave (or at least pay a portion of such leave) to its employees; and/or
- offer in excess of the minimum number of unpaid leave days provided for in the amendments.
We can assist in reviewing, and in most instances revising, your employment agreements and/or leave policies to bring it in line with the new statutory developments in the law which changes will be enacted in due course.
KATHLEEN HOLMES / THERESA ACHADA