In 2017 the Labour Laws amendment Bill seeked to amend the Basic Conditions of Employment Act (BCEA) of 1997 to include parental, adoption and commissioning leave to employees which was passed by the National Assembly in November 2017.
On 21 August 2018, the Labour Bills were considered and passed by the National Council of Provinces. The Bills will now be formally submitted to the President of the Republic of South Africa for final assent and signature.
RECAP OF CURRENT LEGISLATION
- 4 Months leave without pay for the childbearing mother.
Family responsibility leave
- Workers with more than 4 months service, 3 days per year paid leave;
- Birth and illness of a child; and death of a child, life partner, parent, grandparent, brother or sister.
The current legislation does not make any provisions for adoption or surrogacy agreements.
WHAT DOES THE AMENDMENT BILL ENTAIL?
The Bill refers to fathers and surrogacy parents-to-be who are not eligible for maternity leave per the current BCEA.
- Parental leave:
According to this Bill, an employee who is a parent and not eligible for maternity leave will be entitled to 10 consecutive days of parental leave when that employee’s child is born. This will not affect the current maternity leave for female employees.
- Adoption and surrogacy leave:
If an employee is the adoptive parent of a child younger than 2 (two) years, that employee will be entitled to adoption leave of 10 consecutive weeks. Should there be a case of two adoptive parents, only one of the employees will be entitled to the adoption leave and the other to parental leave. This legislation will also apply to an employee who is a commissioning parent in a surrogacy agreement.
FREQUENTLY ASKED QUESTIONS
Will the new leave be with or without pay? Unpaid as the Minister will determine the payment in terms of the UIF Act.
What is the impact on the current Family responsibility leave? There is a repeal in subsection 27 (2) of paragraph (a) of the BCEA. Thus, Family responsibility leave will no longer apply to the birth of the child.
Calendar or work days? Working days.
Will the amended Act be effective immediately or with notice? Effective immediately from 1 January 2019.
THE IMPACT ON YOUR BUSINESS
The amended Act aligns more with international standards and now provide for extended leave for family responsibilities, which in our view addresses important social matters in our country, while balancing the commercial impact on business considering the unpaid nature of the benefits.
Whether it will remain viable for Companies to negotiate annual leave in excess of BCEA minimums is unclear as absenteeism remains a key burning issue in the South African business environment, and time off from work undoubtedly translates into financial risk for Business.
OUR RECOMMENDATIONS Kindly furnish us with your current contracts of employment and leave policy for us to assist with the necessary adjustments to ensure that your business complies with the Basic Conditions of Employment Act.