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Prior to the amendments to the Basic Conditions of Employment Act 75 of 1997 (BCEA), an employee, who did not qualify for maternity leave was only entitled to three days paid family responsibility leave when the employee’s child was born.
The amendments to the BCEA introduce the long-awaited parental, adoption and commissioning parental leave with effect from 1 January 2020, through the promulgation of the Labour Laws Amendment Act 10 of 2018 (the Act).
Parental, adoption and commissioning parental leave
Section 25A of the BCEA provides for the right to parental leave. The new section provides that an employee, who is a parent of a child, can apply and is eligible for, ten consecutive days parental leave. The leave commences on the day the child is born; the date that the adoption order is granted; or the day 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.
Section 25B of the BCEA provides for the right to adoption leave. This new section entitles an adoptive parent of a child below the age of two years to ten consecutive weeks of adoption leave or the ten days parental leave in terms of s 25A of the BCEA. The leave commences on the date that the adoption order is granted or the day 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 occurs first.
Notably, 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 for parental leave. The election is at the discretion of the two adoptive parents.
Lastly, s 25C of the BCEA provides a commissioning parent in a surrogate motherhood agreement with the right to commissioning parental leave of at least ten consecutive weeks or parental leave of ten days, as per s 25A of the BCEA. The commissioning parental leave will commence on the date the child is born as a result of the surrogate motherhood agreement.
In instances where a surrogate motherhood agreement has more than two commissioning parents, one of the commissioning parents may apply for commissioning parental leave and the other for parental leave as per s 25A of the BCEA. Once again, the election is at the discretion of the two commissioning parents.
Notification of the leave
The employee must notify the employer in writing of the date on which such employee intends to take parental, adoption or commissioning parental leave. The employee intending to take the respective leave, must provide the employer with notice at least one month before the expected date of birth or as soon as reasonably possible.
Important considerations for employers
Family responsibility leave is no longer permitted for the birth of a child and is restricted to instances when a child is sick or in the event of the death of a spouse or life partner or the employee’s parent, adoptive parent, grandparent, child or adopted child, grandchild or sibling.
The amendments to the BCEA relating to parental benefits commenced with effect from 1 November 2019. Section 8(a) and (b) of the Act amended s 12 of the Unemployment Insurance Act 63 of 2001 to include parental benefits in addition to the benefits already provided for in terms of this section namely unemployment, dependent’s and illness benefits.
The provisions of the new s 26A of the Unemployment Insurance Act provides that a contributor (subject to s 14 of the Unemployment Insurance Act) who is the parent of a child is entitled to parental benefits if the application is made in accordance with the prescribed requirements and provisions of the Unemployment Insurance Act. Parental benefits must now be paid at a rate of 66% of a beneficiary’s earning at the date of application.
In conclusion, pursuant to the amendments, employers must review their outdated policies and contracts of employment and update their leave systems to align the leave provisions with the provisions of the Act.
Tshepiso Rasetlola LLB (NWU) is a legal practitioner and Asithandile Liwela BA Law LLB (UP) is a candidate legal practitioner at Fasken in Johannesburg.
This article was first published in De Rebus in 2020 (March) DR 5.
