In November 2015 the Labour Laws Amendment Bill (the Bill) was tabled to parliament.  The Bill was adopted with the intention of amongst others, regulating (and extending) paternity leave.  As of 22 August 2018, the Bill has been passed by the National Assembly and the National Council of Provinces. All that remains is authorisation and signature by the President.

What is the current leave entitlement?

As it stands, adoptive parents and commissioning parents are not included in the definition of parents in terms of the family responsibility leave provisions of  section 27 of the Basic Conditions of Employment Act, 1997 (BCEA).  Biological fathers are entitled to three consecutive days’ leave at the birth of their child.   Biological mothers are entitled to four months maternity leave which can be paid or unpaid leave as per the employer’s discretion.

What will the Bill change?

In essence, once signed into law, the Bill will amend family responsibility leave in two ways:

  • First it will increase the family responsibility leave entitlement from three days to 10 consecutive days. Fathers and/or parents who are non-primary caregivers will therefore be entitled to 10 consecutive days of parental leave.
  • Secondly, it extends the definition of parental leave to include adoptive parents and commissioning parents in a surrogate motherhood agreement. Parents who adopt a child below the age of two will be entitled to 10 weeks of consecutive leave (or 10 days leave if they are non-primary caregivers) from the date the adoption is granted or upon the pronouncement by a court.  Commissioning parents are also entitled to 10 weeks consecutive leave.

Some take-home points

It is important to note that the Bill does not seek to legislate paid parental or paternity leave.  Therefore, it still remains unpaid leave unless otherwise agreed to by the employee and the employer.  As it stands employees may be able to claim from the Unemployment Insurance Fund.

The amendments have been drafted to provide more beneficial minimum terms and conditions of employment for working parents, whether biological, adoptive or commissioning.  The amendments also offer equal treatment to same-sex and LGBTQI families.

A number of employers, in anticipation of the amendments, have adopted more liberal parental leave policies.  It may only be a matter of time before this Bill becomes law.  In order for employers to be considered employers of choice within their respective industries, employers across South Africa would do well to reconsider their leave policies.

This article was written by Nomazizi Dlamini, Candidate Attorney, Norton Rose Fulbright South Africa Inc

Leave a Reply

Your email address will not be published. Required fields are marked *