On December 23, 2019, a proclamation was published in terms of which sections 1, 2, 3, 4, 5, 6 and 7 of the Labour Laws Amendment Act 10 of 2018 became effective as of January 1, 2020.
This is in addition to those provisions of the Labour Laws Amendment Act that came into effect on November 1, 2019. While those previous amendments impacted on the Unemployment Insurance Act 63 of 2001, by providing for the payment of unemployment insurance benefits for parents who are on parental leave, the recent amendments impact, mainly, on the Basic Conditions of Employment Act 75 of 1997.
Amendments effective January 1, 2020
The Labour Laws Amendment Act amends the Basic Conditions of Employment Act by:
(1) Inserting definitions into the Basic Conditions of Employment Act, which include: “adoptive parent”, “adoption order” and “prospective adoptive parent”. The additional terms are defined in accordance with their respective definitions in the Children’s Act 38 of 2005;
(2) Providing that an employee, who is a parent of a child, is entitled to at least 10 consecutive days’ parental leave. The parental leave may commence on the day that the employee’s child is born or whichever is earlier: the date that the adoption order is granted or the date 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;
(3) Providing that an employee, who is an adoptive parent of a child who is below the age of two, is entitled to adoption leave of at least 10 weeks consecutively or the parental leave referred to above;
(4) Providing that an employee who is a commissioning parent in a surrogate motherhood agreement is entitled to a commissioning parental leave of at least 10 weeks consecutively or the parental leave referred to above. The definition of “commissioning parent” as well as “surrogate motherhood agreement” has the meaning assigned to it in the Children’s Act;
(5) Providing that 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 Basic Conditions of Employment Act and the collective agreement does not reduce an employee’s entitlement to parental leave, adoption leave and to commissioning parental leave.
So what do the amendments mean for employers?
The amendments are of significant importance in that they provide employees with the right to the above-mentioned leave and, conversely, impose an obligation on employers to provide same.
It is important for employers to adequately cater for these provisions in their policies and procedures. Employers can seek professional assistance to ensure these are updated to take into account these most recent amendments.
Jacques van Wyk is director at Werksmans Attorneys.