Parliament passed the Labour Law Amendment Act in November last year. While the media has mostly focused on the right to longer leave for new fathers, the provisions cover a broader spectrum of concerns.
“It’s not just good news for fathers-to-be,” says Cathie Webb, director at the South African Payroll Association (SAPA). “It’s also a breakthrough for same-sex couples, especially men, who were never legally entitled to the time needed to introduce a child into their family and bond with it.” In the past, fathers were given only three days' family responsibility leave, paid by their employer.
The new law allows an employee who is the parent of a child to take at least 10 consecutive days of parental leave, which starts on the day the child is born or on which the adoption is granted. If an adopted child is below the age of two, an employee is entitled to at least 10 consecutive weeks of adoption leave, which starts on the day the adoption order is granted. For a surrogate motherhood agreement, a commissioning parent is also allowed at least 10 consecutive weeks of leave, which begins on the date of childbirth.
Only one parent may take adoption or commissioning parental leave (both 10 weeks); the other must take parental leave (10 days). However, the law is clear that who does what is at the discretion of the parents. “In other words,” says Webb, “employers cannot press an employee into nominating their spouse or partner for the longer leave period. This is a deeply personal decision, the right to which must be respected.”
The Act amends the Basic Conditions of Employment Act so that a collective agreement may not reduce an employee’s entitlement to parental, adoption or commissioning parental leave.
In all three leave scenarios, an employee must notify his or her employer in writing at least one month in advance of which date they intend to start the leave and the date on which he or she will return to work. If that’s not possible - for example, in the case of a premature birth - the employee must inform his or her employer as soon as he or she can.
Parents may now claim parental, adoption or commissioning parental benefits from the UIF. However, only one parent may apply for adoption or commissioning parental benefits; the other must claim parental benefits. For fathers to claim, they must be legally registered as the child’s father as per the Children’s Act. Application for benefits must be made within six months of the date of childbirth or adoption.
Webb says that SAPA noticed one omission. It might seem obvious that the right to adoption or commissioning parental leave and benefits would fall away for an employee with a stay-at-home spouse or partner. But the law lacks definitive language dealing with this scenario, and that could lead to confusion.
“Overall, SAPA believes the new legislation is much needed and will contribute to stronger family ties in South Africa,” says Webb.