On 18 December 2019, the President Ramaphosa announced an effective date of 1 January 2020 for sections 1 to 7 of the Labour Laws Amendment Act of 2018. This effectively amends the Basic Conditions of Employment Act to provide for, inter-alia, the much-anticipated parental leave.
As from the 1st of January 2020 the three days family responsibility leave that employees were entitled to upon the birth of a child, was replaced with parental leave as per the Labour Laws Amendment Act of 2018. 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.
In terms of the Labour Laws Amendment 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 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 the circumstances. However, if the employee gave birth to the child, she will not qualify for parental leave. Such employee is entitled to 4 months 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 entitles one of the parents to 10 weeks consecutive unpaid adoption leave. If an adoption order is made in respect of two adoptive parents, only one may apply for adoption leave and the other for parental leave. Parental leave entitles an employee to 10 consecutive days 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 adoptive parent.
As indicated, such 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 parental leave if they were not employed and contributing to the fund during the 13 weeks prior to applying for such benefit. The same will be applicable for adoption leave.
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 adoptive 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.”Jan du Toit is available to assist employers with the formulation of policies in line with provisions of the Labour Laws Amendment Act of 2018 firstname.lastname@example.org