NEWS  


PARENTAL RIGHTS
2019/02/07

Dear Clients 

The commencement of 2019 has seen a number of changes in various pieces of labour legislation, including the National Minimum Wage Act, the Basic Conditions of Employment Act and the Unemployment Insurance Fund Act. In this snippet we will tell you about the changes relating to the Basic Conditions of Employment Act which deal with Parental leave, as introduced and inserted by the Labour Laws Amendment Act, 10 of 2018.

 

The Act was approved and signed on the 23rd of November 2018 and became effective on the 02nd of January 2019.  Various changes will be included in the Basic Conditions of Employment Act (hereinafter referred to as BCEA) and we will give you a summary of those changes below:

 

Ø  Section 1 (Definitions) of the BCEA has been amended by the Labour Laws Amendment Act, 10 of 2018 to insert definitions in Section 1. The following are of importance to employers:

o   “adoption order” – which means an adoption order as envisaged in terms of the Children’s Act;

o   “adoptive parent” – has the same meaning as the meaning per the Children’s Act;

o    “prospective adoptive parent” means a person who complies with the requirements set out in the Children’s Act. 

 

Ø  The Act has also been changed in respect of new sections 25A, 25B and 25C

 o   Section 25A – Parental Leave

Section 25 A has been included in the Act to make provision for “Parental leave”. 

Ø  What this section means is that an employee who is a parent of a child is entitled to ten (10) consecutive days Parental leave. 

Ø  The section further states that leave may commence on the day the employee’s child is born; or on the date that an adoption order has been granted; or when a child is placed in the care of a prospective adoptive parent by a court pending the finalisation of an adoption order in respect of that child (whichever date occurs first). 

Ø  The Act also states that the employee must notify the employer in writing (unless the employee is unable to do so) when the employee intends to commence Parental leave and when the employee intends returning to work after Parental leave. 

Ø  The notice must be given at least one month before the employee’s child is expected to be born, or at least one month before any adoption order will be granted. 

Ø  Payment in terms of Parental leave will be through the Unemployment Insurance Act 63 of 2001. 

 

o   Section 25B – Adoption Leave

Ø  Section 25B has been included to deal with Adoption leave. 

Ø  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) consecutive weeks alternatively to the Parental leave referred to in Section 25A. 

Ø  An employee may commence Adoption leave on the date that the adoption order is granted; or the date a child is placed in the care of the prospective adoptive parent by a court, pending the finalisation of the adoption order in respect of the child (whichever date occurs first). 

Ø  The Act also states that an employee must notify the employer in writing (unless the employee is unable to do so) when the employee intends on commencing with the Adoption leave, and returning to work after the Adoption leave. 

Ø  The notice must be given at least one month before the adoption order is granted. 

Ø  Payment in terms of Adoption leave will be through the Unemployment Insurance Act 63 of 2001. 

Ø  What if there are two adoptive parents?  Where an adoption order is made in respect of two adoptive parents, or where a court orders that a child is placed in the care of two prospective adoptive parents pending the finalisation of an adoption order, one of the adoptive parents may apply for Adoption leave and the other may apply for Parental leave.  The Section is silent on whether or not the two adoptive parents work for the same employer. The deduction therefore is that if they do then both employees are entitled to either Adoption leave or Parental leave – the selection being made by the two adoptive or prospective adoptive parents.  Where the two persons concerned work for different employers then it is difficult to see how the choice of leave will be regulated – the two employers would need to be aware of the respective leave applications i.e. for Parental or Adoptive leave.

 

o   Section 25C – Commissioning Parental Leave

Ø  Section 25C deals with a commissioning parent who is in a surrogate motherhood agreement.  The Act states that the employee is entitled to Commissioning Parental leave of at least ten (10) consecutive weeks leave, or parental leave referred to in Section 25A. 

Ø  The employee may commence Commissioning Parental leave on the date a child is born as a result of the surrogate motherhood agreement.  

Ø  The employee must notify the employer in writing (unless the employee is unable to do so) of the date the employee intends on commencing with Commissioning Parental leave and also when the employee intends returning after Commissioning Parental leave. 

Ø  Notification to the employer must be given at least one month before the expected date of birth of the child. 

Ø  Payment in terms of Commissioning Parental leave will be through the Unemployment Insurance Act 63 of 2001. 

 

What is a Commissioning Parent? 

“A commissioning parent is a person who enters into a surrogate motherhood agreement with a surrogate mother” (Per the Children’s Act 38 of 2005). 

 

What is a surrogate motherhood agreement?

“This 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”.  (Per the Children’s Act 38 of 2005). 

 

Ø  Section 27 of the BECA - Family Responsibility Leave

The Amendment Act removes section 2(a) “when the employee’s child is born” meaning that the employee’s Family Responsibility leave will now only be “(b) when the employee’s child is sick; or (c) in the event of the death of (i) the employee’s spouse or life partner; or (ii) the employee’s parent, adoptive parent, grandparent, child, adopted child, grandchild or sibling.

 

Ø  Section 49 of the BECA – Variation by Agreement

A collective agreement concluded in a bargaining council may not reduce any employee’s entitlement to any of the above forms of leave. 

 

What do you need to go going forward?

Human Resources policies and contracts of employment will need to be revised and updated.  The new forms of leave are indeed extensive.  Absence from work, albeit lawful, will impact on labour requirements, contingency plans, and the availability of a pool of appropriately skilled labour.  The use of fixed term contracts of employment, which is justifiable on the basis of the absence of an employee (Section 198B(4)(a) of the LRA), will increase and careful attention must be paid to the wording of these limited duration contracts. 

 

“Parental leave” is generally considered as a generic term including maternity, paternity and adoption leave.  The amendments, however, provide for “Parental leave” as a species of (Parental leave), along with Adoption leave and Commissioning Parental leave.  Accordingly, a question that arises is, is a female employee entitled to “Parental leave” when she is (already) entitled to maternity leave.  Section 25A says “an employee who is a parent…” – it does not refer to only a male (or female) employee (who is the parent).  The wording is gender neutral. A strict interpretation is therefore that any employee, regardless of gender, is entitled to “Parental leave”.  But it makes no practical sense – if the mother (who is the female biological parent) goes on maternity leave.  Surely a female employee, who is the biological mother of the child, is only entitled to maternity leave?  But, it makes more sense if civil unions between parties of the same sex are considered.  Here the one parent, who assumes the role of mother, would be entitled to maternity leave (even if a male) – see MIA vs State Information Technology Agency Ltd (LC) and the other to Parental leave, regardless of gender. 


Another area where the changes to “Parental leave” (as a generic term) will have an impact is that of equal pay (or benefits) for equal work, as it will of course in respect of employee costs, per se.  If a company has chosen or agreed to pay for maternity leave (or a percentage thereof), then the question will be why should other forms or “Parental leave” (as a generic term) not be paid?  If the answer given by the employer, for example, is that a male employee is not entitled to paid Parental leave (as a species of “Parental leave”) because the employee is male, then that would no doubt be found to be discriminatory, as the basis of differentiation is a listed arbitrary ground.  It seems that gender cannot form the basis of any distinction between employees when they become entitled to any form of “Parental leave” (as a generic term).  Again, policies and contractual terms will have to be revisited. 


For more information on the changes relating to the Basic Conditions of Employment Act please do not hesitate to contact one of our experienced consultants. 


Kind regards

Ms Tanya Barnard

Email: tanyab@yourside.co.za – Cell – 082 328 7101 // Email: gavinm@yourside.co.za – Cell – 082 891 7093 



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