In a welcoming and long-awaited
move, President Cyril Ramaphosa signed the Amendment of the Labour Law Act into
law on 28 November 2018, giving parents, particularly fathers of newborn
children, adoptive parents and commissioning parents, the right to ten
consecutive days parental leave. This new law took effect on 1 January 2020.
This new law is seen
as a progressive move towards recognising biological fathers, same sex parents,
transgender parents, adoptive parents and even surrogates. It further
acknowledges the fact that the gap between one or two parents being employed in
a household is getting narrower and narrower. The entitlement to parental leave
also fosters family bonding between the parents and a child, which is of utmost
importance.
This amendment to the
Basic Employment Condition Act, 1997 is the insertion of clauses 25A, 25B and
25C, set out below:
Parental Leave
25A.
(1) An
employee, who is a parent of a child, is entitled to at least ten consecutive
days parental leave.
(2) An employee may commence parental leave on-
(a) the day that the employee’s child is born; or
(b) the date—
(i) that the adoption order is granted; or
(ii) that a child is placed in the care of a prospective adoptive parent by a
competent court, pending the finalisation of a 30-day-adoption order in respect
of that child, whichever date occurs first.
(3) An
employee must notify an employer in writing, unless the employee is unable to
do so, of the date on which the employee intends to—
(a) commence parental leave; and
(b) return to work after parental leave.
(4) Notification in terms of subsection (3) must be given—
(a) at least
one month before the—
(i) employee’s child is expected to be born; or
(ii) date referred to in subsection 2 (b); or
(b) if it is
not reasonably practicable to do so, as soon as is reasonably practicable.
(5) The payment of commissioning parental
benefits will be determined by the Minister, subject to the provisions of the Unemployment Insurance Act, 2001 (Act No. 63 of 2001).
Adoption Leave
25B.
(1) An
employee, who is an adoptive parent of a child who is below the age of two, is
subject to subsection (6), entitled to—
(a) adoption leave of at least ten weeks
consecutively; or
(b) the parental leave referred to in section 25A.
(2) An employee may commence adoption leave on the date—
(a) that the adoption order is granted; or
(b) 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 date occurs first.
(3) An
employee must notify an employer in writing, unless the employee is unable to
do so, of the date on which the employee intends to—
(a) commence adoption leave; and
(b) return to work after adoption leave.
(4) Notification in terms of subsection (3) must be given—
(a) at least one month before the date referred to
in subsection (2); or
(b) if it is not reasonably practicable to do so, as soon as is reasonably
practicable.
(5) The payment of parental benefits will be
determined by the Minister, subject to the provisions of the Unemployment Insurance Act, 2001 (Act No. 63 of 2001).
(6) If
an adoption order is made in respect of two adoptive parents, one of the
adoptive parents may apply for adoption leave and the other adoptive parent may
apply for the parental leave referred to in section 25A: Provided that the
selection of choice must be exercised at the option of the two adoptive
parents.
(7) If
a competent court orders that a child is placed in the care of two prospective
adoptive parents, pending the finalisation of an adoption order in respect of
that child, one of the prospective adoptive parents may apply for adoption
leave and the other prospective adoptive parent may apply for the parental
leave referred to in section 25A: Provided that the selection of choice must be
exercised at the option of the two prospective adoptive parents.
Commissioning parental leave
25C.
(1) An
employee, who is a commissioning parent in a surrogate motherhood agreement is, subject to subsection (6), entitled to—
(a)
commissioning parental leave of at least ten weeks consecutively; or
(b) the
parental leave referred to in section 25A.
(2) An
employee may commence commissioning parental leave on the date a child is born
as a result of a surrogate motherhood agreement.
(3) An
employee must notify an employer in writing, unless the employee is unable to
do so, of the date on which the employee intends to—
(a) commence commissioning parental leave; and
(b) return to work after commissioning parental leave.
(4) Notification in terms of subsection (3) must be given—
(a) at least one month before a child is expected
to be born as a result of a surrogate motherhood agreement; or
(b) if it is not reasonably practicable to do so, as soon as is reasonably
practicable.
(5) The
payment of commissioning parental benefits will be determined by the Minister, subject to the provisions of the Unemployment Insurance Act, 2001 (Act No. 63
of 2001).
(6) If
a surrogate motherhood agreement has two commissioning parents, one of the commissioning parents may apply for commissioning parental leave and the other commissioning parent may apply for the parental leave referred to in section 25A: Provided that the selection of choice must be exercised at the option of
the two commissioning parents.
This landmark legislation does not apply to mothers who give birth as
they are entitled to maternity leave, which is four months maternity leave, in
terms of the Basic Conditions of Employment Act.
Maternity leave is paid out of the Unemployment Insurance Fund (UIF). Parental
leave, adoption leave, and commissioning leave will also be paid out of UIF. Employees will be given a partial pay out of up to
66% of their salary from the UIF.
We recommend that employers amend the employment contracts to include
this new law and further make their employees aware of their new rights.