RELATIVE to the rest of the world, South Africa’s employment laws are comparable with many developed countries with labour law
providing wide ranging protections to employees.
However, the country was behind the curve when it comes to parental leave.
Parental leave for fathers, parents who adopt and surrogate parents recognises, as numerous studies have shown, that parental leave
is beneficial for not just for the parents and children but for society and companies.
Recent changes to leave provisions in relation to parents through the introduction of the Labour Laws Amendment Act is, therefore, a
welcome step in the right direction.
Lemias Mashile, the chairperson of the Portfolio Committee on Labour, said the committee was confident that the Act responded
adequately to the current and changing socio-economic conditions prevalent in the country.
“The committee remains of the view that the amendments are necessary to improve bonding between parents and the child and
strengthen family relations,” he said.
While the Act has not yet come into effect, employers must be pro-active and review their policies to cater for the new forms of leave for
The Act introduces amendments to the Basic Conditions of Employment Act (BCEA) and specifically, the amendments seek to extend
leave for not only biological parents, but also parents who adopt or commission a surrogate.
The previous position was a provision for maternity leave as well as family responsibility leave only. Under the BCEA, a working mother
is entitled to at least four consecutive months of maternity leave. That position will not change.
The BCEA also allows for family responsibility leave, which entitles an eligible employee – one who has been in a job for at least four
months and who works at least four days a week – to three days of leave every year in the event of birth, sickness or death of that
employee’s child, including an adopted child or death of a spouse or other close relatives.
The Act will do away with family responsibility leave relating to when a child is born.
The Act, among other things, provides for three other important changes.
The first change is parental leave for the birth of a child and is applicable to parents not entitled to maternity leave. An employee who is
a parent of a child will be entitled to 10 consecutive days’ parental leave.
The second category is adoption leave, which relates to the adoption of a child below the age of two, and which until now has not been
available as a right.
Adoptive parents are entitled to 10 consecutive weeks’ leave, starting on the day that the adoption order is granted.
If there are two adoptive parents, they can choose if the one takes parental leave (10 days) and the other will take adoption leave (10
Employers should note a scenario where the two adoptive parents could be from the same workplace. In this respect, we suggest that
the two adopting parents should be engaged, well in advance, on the taking of either parental leave or adoption leave, with a view to
minimising disruption to their functions and related operational duties.
Finally, there is commissioning parental leave that relates to surrogacy. The primary commissioning parent will be entitled to
commissioning parental leave.
A “commissioning parent” is defined in the Children’s Act as a person entering into a surrogate motherhood agreement with a surrogate
A surrogate motherhood agreement is an agreement between a surrogate mother and commissioning parent in which it is agreed that
the surrogate will be artificially inseminated for the purposes of bearing a child for the commissioning parent and in which the surrogate
undertakes to hand over the child at birth or within a reasonable time thereafter, with the intention that the child concerned becomes the
legitimate child of the commissioning parent.
If there are two surrogate parents, they can choose if the one takes commissioning parental leave and the other can take normal
The one who takes commissioning parental leave will be entitled to 10 consecutive weeks’ of leave, while the other will be entitled to 10
consecutive days’ of normal parental leave.
In both cases, leave can start on the date of the birth of the child.
The Act also amends the Unemployment Insurance Act so as to provide for the right to claim parental, adoptive and commissioning
parental benefits from the Unemployment Insurance Fund.
The three categories of leave will, therefore, not be deemed as automatically paid leave.
An application for benefits must be made within 12 months of childbirth, adoption order or placement of the child in the prospective
adoptive parent’s care.
Parental, adoption and commissioning parental benefits shall be payable at a rate of 66% of the beneficiary’s earnings at the date of
application subject to the determined maximum income threshold.
Employers can also go a long way in assisting parents by providing for flexible leave arrangements.
According to the Organisation for Economic Co-operation and Development, flexible or part-time leave arrangements may provide a
solution for parents who may be unwilling or unable to stop work completely.
“Such arrangements can help minimise the financial impact of taking leave, while allowing employees to remain connected to their jobs
and to care for children. Employers may benefit too. In many cases, they may not have to go to the expense of finding and hiring a
replacement worker if the employee is on leave only part time,” said the organisation.
Supplied by Practice Lead: Professional Services.