Transformation of Parental Leave in South Africa

On the 27 November 2018 President Cyril Ramaphosa signed various amendments to labour legislation into law. These amendments have introduced additional parental leave benefits for fathers, adoptive parents as well as commissioning parents and have effect from 1 January 2019 in terms of the Labour Laws Amendment Act.

Section 25A was inserted, amongst others, into of The Basic Conditions of the Employment Equity Act (BCEA) which now allows for a maximum 10 days of consecutive parental leave, thus an increase from three days as previously allowed under the BCEA. Payment of such parental benefits shall be determined by the Minister, subject to the provisions of the Unemployment Insurance Act 63 of 2001 (UIF). The purpose of this is to allow fathers / both parents time to bond with their new born children and be more involved.

In addition to the importance of allowing fathers to bond with their children, this time could be helpful in the case of a mother having a difficult birth or complications with pregnancy. Fathers would in turn be able assist new mothers who may need support both physically and emotionally after the birth of a child.

The case for parental leave or in the case of father’s paternity leave has been an ongoing battle as mothers historically seen as the primary care giver of a child. This is evident from the fact that only 79 countries make provision for paternity leave. However, many do not allow for paid paternity leave.

In addition to the aforesaid amendment, these provisions have been extended to LGBTQ persons. Previously same sex couples could not adopt children. However with the ushering in of our Constitution in 1996 provides that no one should be discriminated against, including due to one’s sexual orientation.

Section 25B deals with leave an adoptive parent is entitled to and is beneficial to both heterosexual and same-sex couples. This section provides that an adoptive parent of a child below the age of two years is entitled to at least 10 weeks of consecutive leave. In the case of two adoptive parents one parent may apply for 10 weeks consecutive leave and the other may apply for 10 days parental leave.

Similarly, section 25C, dealing with commissioning parents, provides that a commissioning parent in a surrogacy agreement is entitled to 10 weeks of consecutive leave. This section benefits both same-sex and heterosexual couples and in circumstances where two parents are commissioning parents, one parent is entitled to 10 weeks consecutive leave and the other parent may apply for 10 days parental leave.

The term ‘parental leave’ is gender neutral and does not refer exclusively to a child’s father.

These amendments are positive steps forward in an attempt to provide equal rights to all individuals within the South African workforce.