New Year - New proposed Legislation - Parental Leave
Is it fair for only biological mothers to receive maternity leave or should “other types of parents” also have the right to “special leave”. What about same sex partners? Read our snippet below on the proposed changes contained in the Labour Laws Amendment Bill, specifically in relation to “Parental Leave”
Recently the Labour Court highlighted shortfalls within the Basic Conditions of Employment Act regarding “protection to all categories of employees who are parents”. It is a known fact that the Basic Conditions of Employment Act only makes provision for maternity leave for female employees and Family Responsibility Leave for any employee when a child is born (amongst other provisions). The debate was is should “any type of parent” be entitled to some form of leave. The Labour Laws Amendment Bill has thus been drafted for public comment.
The Bill includes the following new definitions and meanings:
a) “Adoptive parent” which means a person who has adopted a child in terms of any law, as prescribed in Section 1 of the Children’s Act;
b) A “Prospective adoptive parent” which means a person who complies with the requirements set out in Section 231 (2) of the Children’s Act;
c) A “commissioning parent” is any person who enters into a surrogate motherhood agreement with a surrogate mother, as prescribed in terms of Section 1 of the Children’s Act;
d) A “surrogate motherhood agreement” means an agreement between a surrogate mother and a commissioning parent in which it is agreed that the surrogate mother will be artificially fertilised for the purpose of bearing a child for the commissioning parent and in which the surrogate mother undertakes to hand over such a child to the commissioning parent upon its birth, or within a reasonable time thereafter, with the intention that the child concerned becomes the legitimate child of the commissioning parent as prescribed in terms of Section 1 of the Children’s Act.
What does the Bill propose?
Essentially the Bill introduces and distinguishes between “Parental Leave” and “Adoption Leave” as proposed amendments to the Basic Conditions of Employment Act. The Bill proposes that an employee is entitled to at least ten (10) consecutive days parental leave from the day that the employee’s child is born, the day that an adoption order is granted or the day 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 occurs first. The Bill further proposes that all reference to Family Responsibility Leave for the birth of a child be removed and that Family Responsibility will now only apply when a child is sick (other than the normal provisions for Family Responsibility Leave).
Secondly the Bill proposes that an employee who is an adoptive parent of a child below the age of two years is entitled to adoption leave of at least ten (10) weeks consecutively OR parental leave referred to above (i.e. ten (10) days). Leave may commence on the date the adoption order is granted, or that a child is placed in the care of the prospective adoptive parent by a competent court, pending finalisation of an adoption order in respect of that child, whichever occurs first.
The Bill provides in terms of Section 25B(7) that if a child is placed in the care of two prospective adoptive parents then one of the adoptive parents may apply for parental leave (i.e. 10 days) and the other for adoption leave (i.e. 10 weeks).
The Bill further provides for “Commissioning Parental Leave” which provides for an employee who is a commissioning parent in a surrogate motherhood agreement. The commissioning parent is entitled to ten (10) weeks commissioning parental leave or parental leave of 10 days. Leave may commence on the date the child is born.
What does “OR” mean between the different types of leave? In the event that two parents (whether commissioning parents or adoptive parents) apply for leave in terms of the provisions above then this means that one parent may take 10 days parental leave and the other parent may take 10 weeks adoption / commissioning parental leave. This will become a regulatory issue in terms of the relevant departments in the Department of Labour, however, as an employer you may receive a request from the Department of Labour requesting to report on what “type” of leave a parent has applied for i.e. parental leave or adoption / commissioning parental leave.
How would an employee receive payment for the above mentioned leave?
If an employee is a UIF contributor then payment for parental, adoption and commissioning parental leave benefits will be claimed from the UIF. Parental, adoption and commissioning parental benefits must be paid at a rate of 66% of earnings of the beneficiary at the date of application subject to the maximum income threshold. A Collective Agreement in terms of unionised employers may not reduce an employee’s entitlement to any of the above mentioned leave.
The proposed commencement date of the Labour Laws Amendment Act is June 2018.
There are certain requirements for employees to qualify for the above mentioned leave as well as UIF payments. For more information on the requirements please contact one of our experienced consultants.
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