The Labour Laws Amendment Bill (“the Bill”), would allow for the amendment of the Basic Conditions of Employment Act of 1997 (BCEA). The amendment to the Bill intends to allow for additional definitions to the BCEA, providing ways in which adoptive, surrogate and paternal parents have the right to claim leave and benefits amongst other amendments to the labour law. In South Africa, the provision for maternity leave and access to claim from UIF is provided for the maternal parent of a new born child. The other characters in a child’s life such as the paternal parent, as well as surrogate parent, have only been provided with minimal benefits in the workplace.

To broaden the definitions of parental leave in South Africa, the Bill published in November 2017 would allow for the following additions to Section 25 of the BCEA. At the time of writing this article, the Bill still needs to be referred to the National Council of Provinces and, if passed there, will be submitted to the President for assent.

Section 25 A: Parental Leave

If the Bill is passed, parental leave would allow for an employee who is the parent of the child to be entitled to a minimum of 10 consecutive days of parental leave. The employee would be entitled to take leave days for the birth of the child; the day the adoption order is granted; as well as when the child has been placed in the care of the adoptive parent by court order. The Bill also stipulates that the employee has to notify the employer in writing a month prior to commencing leave, also indicating when the employee will commence leave and when the employee intends on returning to work. In cases where it is not practically reasonable to provide notice, it should be done as soon as it is practical.

Section 25 B: Adoption Leave

If the Bill is passed, an employee that is the adoptive parent to a child below the age of two will be entitled to at least 10 consecutive weeks of leave; or the 10 days of parental leave as per Section 25 A. The employee would be entitled to commence adoption leave once the adoption order has been granted by the court or once the child has been placed with the expected adoptive parent by court order. An employee would be required to give notice of when they intend to commence adoption leave and the date on which the employee shall return to work.

In the case of two adoptive parents, one adoptive parent must apply for adoptive leave and the other parent may apply for the parental leave in accordance with Section 25 A.

Section C: Commissioning Parental Leave

If the Bill is passed, an employee who is a surrogate parent would be entitled to at least 10 consecutive weeks of the leave; or parental leave as stipulated in Section 25 of the Bill. The employee would be entitled to commence commissioning leave once the child has been born due to surrogate motherhood agreement. The employee should notify the employer of the date the employee intends to commence commissioning leave, as well as when the employee intends to return to work.

In cases of there being two commissioning parents in the surrogate’s motherhood agreements, one of the surrogate parents may apply for the commissioning parental leave and the other surrogate parent may apply for the parental leave as per Section 25 of the Bill.

Phelokazi Nyangane

HR Assistant, Johannesburg

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