Commencement 1 January 2020
On 18 December 2019, President Ramaphosa announced that sections 1 to 7 of the Labour Laws Amendment Act of 2018 would come into effect on 1 January 2020. This effectively amends the Basic Conditions of Employment Act to provide for, inter-alia, the much-anticipated parental leave.
The three days family responsibility leave that employees were entitled to upon the birth of a child, has been replaced with parental leave entitlement. The remainder of section 27 of the Basic Conditions of Employment Act (Family Responsibility Leave) remains intact, entitling employees to three days family responsibility leave when a child is sick (younger than 18 years of age) or alternatively upon the death of a family member as listed in the Act.
An employee is entitled to 10 days parental leave upon the birth of the employee’s child. Parental leave may also be applicable in circumstances where an employee legally adopts a child or when a child is placed by a court in the care of a prospective adoptive parent. In this regard one must consider the definitions of adoptive and prospective adoptive parents. A “prospective adoptive” parent means a person that complies with the requirements set out in the Children’s Act of 2005. A prospective adoptive parent therefore means:
a person that is fit and proper to be entrusted with full parental responsibilities;
that is willing and able to undertake, exercise and maintain those responsibilities;
that is older than 18 years;
and that has been properly assessed by an adoption social worker.
“Adoptive parent” means a person who has adopted a child in terms of any law.
Based on the aforementioned it is evident that both male and female employees may qualify for parental leave depending on the circumstances. However, if the employee gave birth to the child, she will not qualify for parental leave. Such an employee is entitled to 4 months of unpaid maternity leave.
Female employees may, however, qualify for parental leave in circumstances where such employee is one of the adoptive parents or a prospective adoptive parent as per the definitions above. For the purposes of adoption leave, the child must be younger than two years of age.
Adoptive Parental leave and Commissioning leave
Adoptive parental leave or commissioning leave entitles one of the parents to 10 weeks of consecutive unpaid adoption or commissioning leave. Only one of the parents may apply for such leave; the other will be entitled to parental leave.
Parental leave entitles an employee to 10 consecutive days to leave (not 10 working days):
after the employee’s child has been born;
an adoption order has been granted by a competent court, or
a child has been placed in the care of the prospective parent.
As indicated, the 10 weeks leave will be unpaid, and employees will, therefore, have to submit claims to the Unemployment Insurance Fund to qualify for payment during the periods of absence from work.
In terms of the Labour Laws Amendment Act, an employee is entitled to 66% of his or her regular earnings subject to the maximum income threshold as per the Unemployment Insurance Act. Contributors will not be entitled to be paid from the Unemployment Insurance Fund for adoptive or commissioning parental leave if they were not employed and contributing to the fund during the 13 weeks prior to applying for such benefit.
It is important to note that in order to qualify for the payment of parental leave benefits from the Unemployment Insurance Fund, a male employee will have to adduce proof of him being the father of the child by virtue of a birth certificate with his name and surname appearing on it.
A further requirement in terms of the Amendment Act is that an employee must notify his or her employer in writing of the date that such leave is to commence and when the employee will return to work. Such notice must be given one month before:
the child is expected to be born,
or the date that the adoption order will be granted, or
when the child is placed in the care of a prospective parent.
“Employers are therefore urged to review their outdated policies and contracts of employment in so far as it relates to the provisions of the Labour Laws Amendment Act.”