Traditional family units across the world have changed. The proposed changes to the Basic Conditions of Employment Act, No 75 of 1997 (BCEA) recognise those changes and the important roles that different people play in raising children in a modern family unit.
Currently, new fathers are not specifically provided with leave following the birth of their child. If a new father wishes to take leave after the birth of his child, he would have to take Family Responsibility Leave as provided for in s27 of the BCEA. Currently, s27 of the BCEA provides for three days paid leave per annual leave cycle. Family Responsibility Leave is available not only for the birth of a child, but also in the event of death of an immediate family member, spouse or life partner or the illness of a child.
However, Family Responsibility Leave is subject to several limitations. Firstly, the father must have worked for his employer for a period of at least four months, and must work for at least four days a week before he is entitled to such leave. If a father were to find himself in the unfortunate situation where he has already taken Family Responsibility Leave (for whatever reason) in that leave cycle, he may very well have to apply for Annual Leave, if he has any available.
The Labour Laws Amendment Bill [PMB 5 – 2015] (Bill) proposes the insertion of three new sections on leave.
Firstly, the Bill proposes the insertion s25A into the BCEA, and provides for “Parental Leave”. The section would allow a male or female parent ten days’ leave on the birth or adoption of a child.
Secondly, s25B proposes the insertion of “Adoption Leave”. Currently, there is no provision for such leave in the BCEA. On granting of an adoption order, s25B would entitle an employee to either ten weeks’ consecutive leave; alternatively, the Parental Leave referred to in s25A. Should two parents be granted an adoption order, one will be eligible for Adoption Leave, and the other for Parental Leave. The determination of which parent claims which leave is left to the election of the parents. What is notable is that this leave is available to any persons, regardless of their sex, gender, and/or sexual orientation, who adopt a child younger than the age of two at the time of the adoption order.
Finally, s25C proposes “Commissioning Parental Leave”. Again, this is a completely unchartered area of leave for the BCEA to cover. A parent who is a commissioning parent in a surrogate motherhood agreement would also be entitled to ten weeks’ Commissioning Parental Leave or Parental Leave. If two persons are the commissioning parents in the surrogate motherhood agreement, then the commissioning parents must elect which parent will take Parental Leave and which will get Commissioning Parental Leave.
An employee need only inform the employer in writing of their intention to take any of the aforementioned leave, as well as the duration thereof, at least one month (or as soon as is reasonably practicable) before the expected date of birth or adoption of the child.
If an employee takes leave under any of these subsections, the employee is entitled to benefits under the UIF scheme, subject to a determination by the Minister of Labour.
Unless there is a collective or individual agreement, the position that currently applies for maternity leave will stand i.e. an employer is not liable to pay the employee during any such leave period. The employee will only receive benefits from the UIF.
If the Bill is accepted, then it would take important and necessary strides to accommodate the wide variety of family units that form part of our society. It must be emphasised that this is a private members Bill, and it is unclear if this Bill will be passed by the Legislature. As it stands, none of the aforementioned provisions apply.
Fiona Leppan, Craig Thomas and Reabetswe Mampane, Employment practice and services, Cliffe Dekker Hofmeyr.
