The Labour Law Amendment Bill: A step in the right direction?
It may indeed be the case that South African Labour Laws are not as advanced in comparison to other countries in the world, however it is quickly developing in the right direction.
On the 15 November 2018 the president Cyril Ramaphosa in stated that he is in the process of passing various bills amongst many being, the Labour Law Amendment Bill.
On the 23 of November the President of South Africa signed the long awaited Labour Law Amendment Bill into law and was effected on 27 November 2018. The rationale behind the coming into force of this bill is to create an opportunity for fathers more especially, to play a critically active role in the up bringing of the children which would have a great impact on society at large.
The Labour Law Amendment Bill primarily amends the Basic Conditions of Employment Act of 1997 as well as the Unemployment Insurance Act of 2001.
Section 25A of the amendment act states that an employee, who is a parent of a child, is entitled to at least ten consecutive days parental leave. Previously the position was that fathers were only entitled to only three days of family responsibility leave in the event that their child has been born. That provision has now fallen away.
Additional benefits have been afforded to adoptive parents as well. Section 25B grants such employees the benefit of leave for an amount of ten consecutive weeks leave when the adoption order has been granted.
A major development in respect of this law is granting benefits for employees who are known as commissioning parent in a surrogate motherhood agreement, this is a fairly new phenomena in our Country which is not so common. This is when an employee elects to be a parent through a surrogate arrangement. Such employees are entitled to ten consecutive weeks of commissioning parental leave.
In abovementioned circumstances, only one parent is entitled to adoption leave and commissioning parental leave, the other adoptive parent of commissioning parent will have to apply for parental leave. The selection of choice must be exercised at the option of the two adoptive parents or commissioning parents.
THE UNEMPLOYMENT INSURANCE ACT OF 2001
The Unemployment Insurance Act provides for the right to claim parental and commissioning parental benefits from the Unemployment Insurance Fund. A contributor is not entitled to benefits unless he/she was in employment, whether as a contributor or not for at least 13 weeks before the date of application of parental benefits. The appealing aspect of this amendment is that all categories of benefits are claimed in isolation, in other words, should you claim for i.e. unemployment benefits you are still entitled to claim for parental leave benefits.
Furthermore, Unemployment benefits must be paid out to the unemployed contributor regardless of whether or not the contributor has received benefits within a four-year cycle, if the contributor has credits, a contributor is now allowed to claim.
Parental benefits, Adoption benefits and commissioning parental benefits must be paid out at 66% of earnings subject to maximum threshold.
Favourably, maternity benefits have also developed in that employees who have suffered from a miscarriage during the third trimester or given birth to a still born child is entitled to 17.32 weeks of benefits which period previously was 6 weeks.
It must be brought to light that at this stage that the Act does not expressly exclude employees who are entitled to maternity leave from parental leave, however it is only father who may claim for such benefits. Perhaps supplementary legislation will deal with this aspect further, in the interim this may pose challenges for employers in the granting of such leave to an employee who is entitled to maternity leave. Therefore, employers should tread carefully in this regard.
Employers should be cognisant of the fact that no contract or collective agreement may reduce an employee’s entitlement to parental leave, adoption leave and commissioning parental leave.
This improvement in our law creates a non-discriminatory working environment for all employees and although its progression may not be where it should, it is definitely in the swerving in the right direction in alleviating parents who yearn to participate in the upbringing of their children without employment restrictions, which is an achievement in our developing law.