EMPLOYMENT TRENDS – PARENTAL LEAVE September 2017

By NIKKI WEBB AND NEIL BARRETT, Published in Employment Law

"Maternity Leave" is fast becoming an outdated term. There seems to be a trend towards a more gender neutral concept of "parental leave". Unfortunately, given the basic, limited benefits provided for in South African employment legislation, employees are left to rely upon their employers to provide for further benefits in their employment policies or contracts, at least for now.

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The Basic Conditions of Employment Act (75 of 1997) (the BCEA) provides for maternity leave and family responsibility leave. Section 25 of the BCEA provides for four consecutive months maternity leave. Traditionally, maternity leave was only available to the birth mother of the child. The father of a new born child would only be entitled to apply for the maximum three days' family responsibility leave in terms of s27(2)(a) of the BCEA or, alternatively, would be required to make use of available annual leave. We have, however, seen some progression in the courts and further changes to our legislation seem imminent.

Various parts of the world have made significant changes to legislation to cater for a range of possible circumstances surrounding the birth of a child. In the United Kingdom, employees are entitled to up to 12-months maternity leave and there are statutory payments they can receive for up to 39-weeks of that period, subject to certain qualifying criteria. There is also a statutory entitlement to Shared Parental Leave (SPL), which interplays with maternity leave and allows the parents of a child to share the 12-month leave period between them.

Shared Parental Leave is intended to provide more flexibility for families as the 12-month period can be divided between both parents in a manner which suits their own unique circumstances. SPL is not required to be taken over one continuous period as is required for Maternity/Adoption or Paternity Leave, and also allows both parents to be off at the same time should they wish. SPL rights apply to birth parents, employees who adopt children and for the intended parents in a surrogacy arrangement (subject to certain qualifying criteria).

In the USA, maternity and parental benefits fall far short of the UK, and even South Africa's current basic entitlements. In the USA, under federal law, employees are entitled to 12-weeks unpaid leave under the Family and Medical Leave Act (FMLA) for a serious health condition, which includes the birth of a child. Employers have the discretion to pay employees during the period of Family and Medical Leave, but are not required to do so. Some companies, however, are also able to pay an employee during the 12-weeks in terms of their short term disability and other programmes.

Most states, and some cities, have laws guaranteeing parental leave as well, although more often than not their benefits are less favourable than those of the FMLA. Washington D.C. is one exception, here employees are entitled to up to 16-weeks' unpaid leave. California,
another exception, seems to provide for some payment from the state.

In South Africa, the first signs of progress in this regard were seen in the well-known judgement of Mia v State Information Technology Agency (Pty) Ltd (MIA) of 2015. In MIA, the Labour Court was called upon to decide whether an employer's refusal to grant a male employee maternity leave in terms of the company's policy amounted to discrimination. The court answered in the affirmative. The male employee was to be the primary caregiver to his adopted child and, in short, the court found that he was entitled to benefits in terms of the employer's maternity leave policy.

Historically, the primary argument behind the exclusion of male employees from maternity leave benefits has to a large extent been that maternity leave entitlements have in mind the physiological implications of pregnancy and birth on a birth mother. The Labour Court in MIA, however, found that the overriding principle to be considered was the best interests of the child in terms of s28 of the Constitution read with s9 of the Children's Act (38 of 2005). To this extent, the court remarked that changes would need to be made to the BCEA.

Since then, we have seen the introduction of the proposed Labour Laws Amendment Bill. The Bill provides for significant changes to existing legislation, particularly the BCEA and the UIA, in respect of parental leave. Some of the more significant features of the Bill are:

  • "parental leave" being 10-days' consecutive unpaid leave, which is not subject to any condition of length of service, commencing on:
    • the date of birth;
    • the date upon which the employee is granted an adoption order; or
    • the date that a child is placed in the care of the adoptive parent by a court (pending the final order).
  • "adoption leave" in terms of which an adoptive parent will be entitled to at least 10-consecutive-weeks' unpaid leave. This entitlement will not apply to both adoptive parents of the child. Where one of the adoptive parents has been granted adoption leave, the other adoptive parent will only be entitled to apply for parental leave.
  • "commissioning parental leave" in terms of which parents who are party to a surrogate motherhood agreement will be entitled to at least 10-consecutive-weeks' unpaid leave. As with adoption leave, where one parent is granted commissioning parental leave, the other is only left with an entitlement to parental leave.

Payment of maternity leave benefits during maternity leave is governed by the Unemployment Insurance Act (30 of 1966) (the UIA). Generally, any pay received from the state during maternity leave is well below the employee's ordinary salary or wages. The Bill further seeks to make the necessary amendments to the UIA to make provision for the payment of parental benefits during the proposed leave periods.

Interestingly, notwithstanding that the Bill was introduced as a private bill, it has seemed to garner sufficient support from members of opposition parties and trade unions for there to be a realistic possibility of its enactment. The Bill, as it stands today, is still under consideration in the National Assembly and is scheduled for further meetings in the third term of 2017. Employers will need to be proactive in dealing with these changes as the Bill progresses through the legislative process and the enactment of the Bill becomes more imminent. The trend has certainly been pointing in the same direction.

Webb is HR Director and Barrett an Associate with Hogan Lovells (South Africa).