Apart from the national minimum wage that was introduced recently, the National Minimum Wage Act also triggered other amendments to inter alia the Basic Conditions of Employment Act and the Labour Relations Act, the most noteworthy being the introduction of parental and adoption leave.
For so many years the law pertaining to maternity leave was limited to Maternity Leave – Section 25 of the Basic Conditions of Employment Act 75 of 1997 (BCEA) for female employees and Family Responsibility Leave in terms of Section 27 of the BCEA for male employees. An attempt was made to address this skewed concept of leave when a child is born through amendments under the BCEA, Act 10 of 2018, which came into effect on 1 January 2019.
In the past, male employees had to rely on Section 27(2)(a) of the BCEA, which stated that–
“An employer must grant an employee, during each annual leave cycle, at the request of the employee, three days’ paid leave, which the employee is entitled to take, (a) when the employee’s child is born.”
To this end, Section 27(2)(a) of the BCEA has been partially repealed meaning that the rest of the provisions relating to Family Responsibility Leave will still be accessed and relied upon by females and male employees.
However, since the said repeal, an employee, who is the parent of a child and who has not claimed Maternity Leave in terms of Section 25 of the BCEA, can now attempt to rely on three newly introduced types of leave generated by the BCEA. The three new types of leave incorporated under the BCEA are Parental, Adoptive and Commissioning Parental Leave.
The payment of maternity benefits in terms of the existing Maternity Leave provisions and the above newly introduced types of leave under Section 25 of the BCEA will be determined by the Minister of Labour subject to the provisions of the Unemployment Insurance Act 30 of 1996 (UIF Act).
The collective effect of the introduction of parental and adoption leave from a basic condition of employment viewpoint is clearly outlined below.
What is parental leave?
Parental Leave – Section 25A(1) and (2) of the BCEA
- An employee who is a parent of a child is entitled to at least 10 (ten) consecutive days’ parental leave;
- An employee may commence parental leave on–
- the day on which the employee’s child is born; or
- the date on which–
- the adoption order is granted; or
- the child is placed in the care of a prospective adoptive parent by a competent court, whichever date occurs first.
What is adoption leave?
Adoption Leave – Section 25B(1), (2) and (6) of the BCEA
- An employee who is an adoptive parent of a child below the age of two is, subject to subsection (6), entitled to–
- Adoption Leave of at least 10 (ten) consecutive weeks; or
- Parental Leave as referred to in Section 25A.
- An employee may commence adoption leave on the date on which–
- the adoption order is granted;
- 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 this choice shall be exercised by the two adoptive parents.
What is commissioning parental leave?
Commissioning Parental Leave – Section 25C(1), (2) and (6)
- An employee who is a commissioning parent in a surrogate motherhood agreement is, subject to subsection (6), entitled to–
- Commissioning Parental Leave of at least 10 (ten) consecutive weeks; or
- the Parental Leave referred to in section 25A.
- An employee may commence Commissioning Parental Leave on the date that a child is born by virtue of a surrogate motherhood agreement.
- If a surrogate motherhood agreement involves 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 this choice shall be exercised by the two commissioning parents.
In terms of the amendments to Section 49(1)(d) of the BCEA–
“A collective agreement concluded in a bargaining council may alter, replace or exclude any basic condition of employment if the collective agreement is consistent with the purpose of the BCEA and the collective agreement does not:
- Reduce an employee’s entitlement to maternity leave in terms of Section 25, 25A, 25B and 25C.”
This new paradigm shift in the nature of maternity leave is one of a long line of proposed changes to the Employment Law landscape.
Written by: Jared Francis, KZN Labour Manager for SERR Synergy. He holds an LLB degree amongst other qualifications and is an admitted attorney.
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