Labour Laws Amendment Bill 2017 (Commonly referred to as Paternity Leave)

By: Roche Houman

Section 25 of the Basic Conditions of Employment Act, which deals with Maternity Leave, will have a welcomed addition in the form of section 25A: Parental Leave, 25B: Adoption Leave and 25C: Commissioning Parental Leave.For fathers, who would normally be entitled to 3 days family responsibility leave, will now enjoy at least 10 consecutive days parental leave, according to the new Labour Laws Amendment Bill, 2017.

• The parental leave entitlement is 10 consecutive days in terms of section 25A.
• The employee may start with parental leave on the day that the child is born; or the day the adoption order is granted or the child is placed in the care of the soon to be adoptive parent, whichever occurs first.An employee who is an adoptive parent will be entitled to 10 weeks adoption leave (section 25B) provided the child is below the age of 2 years. Considering section 25A and B on a practical level, an adoptive parent will be entitled to 10 days parental leave or 10 weeks adoption leave. Therefore, one parent will be entitled to 10 days parental leave and the other parent 10 weeks adoption leave when adopting a child. The same 10 weeks benefit will be applicable to an employee who is a commissioning parent in a surrogate motherhood agreement (section 25C). One parent will be entitled to the 10 days parental leave and the other to 10 weeks commissioning parental leave.

Currently employers grant 3 days paid family responsibility leave to fathers and 4 months unpaid maternity leave to mothers. The 3 day family responsibility leave provision as per section 27 (2) paragraph (a) in the Basic Conditions of Employment Act will fall away when the Bill is gazetted. There will be no obligation on the employer to pay this benefit, unless they have a policy or a contractual agreement to do so.

The employer will also be compelled to grant adoption leave, as there is currently no obligation on them to do so and no provision in the Basic Conditions of Employment Act compelling them. This was normally a matter of negotiation but with the amendments, employers will have to grant such adoption leave.

According to the Bill the Unemployed Insurance Act will be amended to allow the Unemployment Insurance Fund to pay at a rate of 66% of the earnings of the beneficiary at the date of application, subject to the maximum income threshold set by the Act.

Section 27 of the Basic Conditions of Employment Act still requires reasonable proof of an event granted by the Act, so employers may safely assume that reasonable proof will be required from the applicant parent similar to that which will be required from the UIF offices on the prescribed application requirements.

To claim these rights the applicant parent should be a contributor to UIF for at least 13 weeks before the date of application. The contributor who is the parent of a child can apply if the contributor has been registered as the father of the child in terms of the Births and Deaths Registration Act; is the parent of a child below the age of 2 in an adoption order; or is the prospective adoptive parent of a child below the age of 2, in terms of a court order that placed the child in the care of the prospective adoptive parent, pending the finalisation of the adoption order in respect of that child; or is the parent of a child who has been born as a result of a surrogate motherhood agreement referred to in the Children’s Act.