The position on parental leave is proposed to change, as the Labour Law Amendment Bill, which was proposed by the African Christian Democratic Party in 2015, has been issued for public comment. This article specifically refers to the rights that new fathers have to make use of the proposed leave as from the birth of their child.
According to the Basic Conditions of Employment of 2002 (BCEA), a father who wishes to spend time with their newborn will have to make use of family responsibility leave.
The above is granted to the father for a period of 3 days as paid leave. This leave is only available after 4 months of employment, which is calculated over a 12-month cycle if the employee works more than 4 days a week.
There is currently no paternity leave available for a new father and proof needs to be presented of the baby’s birth certificate if family responsibility leave is taken for this reason.
Proposed New Position
Amongst other changes, the above-mentioned bill proposes parental, adoption and commissioning parental leave to employees and states that an employee’s entitlement to parental leave may not be reduced by any form of collective agreement.
The mentioned bill sets out that a father will be entitled to 10 consecutive days leave after the birth of his child. This leave may commence on the date that the employee’s child is born.
In the case of adoptive fathers or parents, the leave will commence on the date that the adoption order was granted. In the event that the adoptive child is below the age of 2 years, the employee will be entitled to 10 consecutive weeks of leave which will also commence on the date the adoption order was granted. It is however clear that only 1 parent may make use of the adoptive leave.
It is important to note that the bill refers to parental leave and not to paternity leave, therefore it can refer to both male and female employees. It is, however, the intention of the bill as set out in its memorandum that parental leave is an entitlement of the employee who is not entitled to maternity leave when their child is born.
It must be noted that the parental leave will be treated as unpaid leave, therefore there will be no obligation on the employer to make payment to the employee for the 10 days. The employee will, therefore, have to claim payment from the South African Unemployment Insurance Fund for those days.
The main goal behind this amendment is to ensure that there is early bonding time with fathers and their newborn, giving effect to the best interest of the child. Fathers will have to wait for the bill to come into effect before being able to make use of the proposed parental leave.
ABOUT THE AUTHOR
Edmund Drake obtained his BCom Law degree in 2011 and his LLB degree in 2013. He completed his articles at Greyvensteins Inc and was admitted as an Attorney and Notary of the High Court of South Africa. He joined SEESA Labour as a legal advisor in our Port Elizabeth office in 2016.