Does your existing leave policies, procedures and employment contracts correspond with the recent changes brought about by the Labour Laws Amendment Act 10 of 2018?
The Labour Laws Amendment Act (LLA Act), amends the Basic Conditions of Employment Act (BCEA) to include parental, adoption and commissioning parental leave to employees. This entitlement cannot be reduced by collective agreement. Furthermore, the LLA Act amends the Unemployment Insurance Act 2001 (UI Act) to include the right to claim payment for parental, adoption and commissioning parental leave from the Unemployment Insurance Fund (UIF).
Prior to the amendments, an employee was entitled to 4 months maternity leave and 3 days paid family responsibility leave.
Employees are now entitled to at least 10 consecutive days parental leave (Section 25A) and adoptive parents to at least 10 consecutive weeks adoption leave or alternatively parental leave if the child is below the age of 2 (Section 25B). Commissioning parents in surrogate motherhood agreements are entitled to at least 10 consecutive weeks commissioning parental leave or alternatively parental leave (Section 25C).
When is Parental, adoption and commissioning parental leave permissible?
Employers and employees should note that parental leave is permissible to be taken by an employee, who is the parent of the child (biological parent, adoptive parent or person in a surrogate motherhood agreement), from the day on which the child is born, on the date the adoption order is granted or on the day that the child is placed with the prospective adoptive parents whilst awaiting the finalisation of the adoption order.
Adoption leave can be taken by an employee from the date on which an adoption order is granted or from the date the child is placed with the prospective adoptive parents whilst awaiting the finalisation of the adoption order. One parent is entitled to take adoption leave and the other parent will be entitled to take parental leave.
Commissioning parental leave can be taken by an employee from the date on which the child is born. In cases where a surrogate motherhood agreement has been entered into, one of the commissioning parents may take commissioning parental leave whilst the other may apply for parental leave.
Employers are not compelled to pay employees in respect of parental leave, adoption leave and commissioning parental leave. The Unemployment Insurance Act has been amended by the LLA Act in order to provide for the payment of benefits in respect of these 3 categories of leave.
Section 27 (2) (a) of the BCEA pertaining to family responsibility leave has been repealed. Family responsibility leave use to be paid by the employer. Due to the insertion of parental leave provision employees lose out on paid leave days but they gain extra days’ leave of which the benefits can be claimed form the UI Act.
Employers should note that if they have enhanced maternity leave benefits, but they do not provide the same or similar enhanced benefits to employees falling within one of the 3 new categories, they run the risk of facing future discrimination claims from employees. This can be avoided by the amendment of leave policies and employment contracts.
Author: Simoné Traut (LLB), Legal Advisor at The Labour Law Company.