ACDP calls for leg­is­la­tion recog­nis­ing need for un­gen­dered ‘parental leave’

CityPress - - Busi­ness - DE­WALD VAN RENS­BURG de­wald.vrens­burg@city­press.co.za

Par­lia­ment will soon have to start de­lib­er­at­ing on the glar­ing ab­sence in South Africa’s labour laws of pa­ter­nity leave and sub­stan­tive equal­ity for gay cou­ples hav­ing chil­dren.

A pri­vate mem­ber’s bill to legally es­tab­lish “parental” leave and give adop­tive or sur­ro­gate-us­ing par­ents bet­ter en­ti­tle­ments was gazetted this week.

It still does not pro­pose full equal­ity be­tween moth­ers who give birth and other cat­e­gories of par­ents, but would sig­nif­i­cantly ex­pand the recog­ni­tion of par­ent­hood at the work­place.

Iron­i­cally, the bill comes from the African Chris­tian Demo­cratic Party (ACDP), a party that is op­posed to gay cou­ples adopt­ing ba­bies in the first place.

In an ex­plana­tory mem­o­ran­dum at­tached to the draft Labour Laws Amend­ment Bill, the ACDP ex­plains that it is pri­mar­ily try­ing to get pa­ter­nity leave leg­is­lated as part of its “pol­icy on fam­ily val­ues”, which stresses the im­por­tance of fa­thers in fam­i­lies.

“The ACDP does not sup­port, nor did it sup­port, amend­ments to the Chil­dren’s Act ... which al­lowed same-sex cou­ples to adopt chil­dren.

“It is the view of the ACDP that for the bill to ac­com­plish its goals, it must be ap­pli­ca­ble in the cur­rent le­gal sit­u­a­tion.”

The pri­mary aim of the bill is to in­tro­duce an un­gen­dered new ba­sic con­di­tion of em­ploy­ment called parental leave.

This would, in prac­tice, be pa­ter­nity leave in a het­ero­sex­ual re­la­tion­ship, but ap­ply equally to one of the part­ners in a same-sex civil union.

The bill still pro­poses a rel­a­tively in­signif­i­cant 10 days of parental leave, but pro­poses that this leave be sub­sidised by the Unem­ploy­ment In­surance Fund (UIF) in the same way that birth moth­ers’ four months of ma­ter­nity leave is fi­nanced.

Ch­eryl­lyn Dud­ley, the ACDP’s par­lia­men­tary whip, ex­plains that the 10-day fig­ure is a com­pro­mise meant to fore­stall op­po­si­tion from em­ployer groups that might op­pose the bill.

It was agreed on with labour fed­er­a­tion Cosatu in con­sul­ta­tions, said Dud­ley.

At present, fa­thers of new­born chil­dren are forced to rely on their le­gal right to three days of “fam­ily re­spon­si­bil­ity leave” in lieu of any spe­cific pro­vi­sion in the Ba­sic Con­di­tions of Em­ploy­ment Act.

This is the same leave gen­er­ally used to at­tend fu­ner­als or other fam­ily emer­gen­cies.

Apart from the 10 days of parental leave, the bill also seeks to cre­ate adop­tion and sur­ro­gate leave, which would again ap­ply equally to het­ero­sex­ual or gay cou­ples.

While the UIF al­ready pays adop­tion ben­e­fits, the Ba­sic Con­di­tions of Em­ploy­ment Act does not yet force em­ploy­ers to grant this kind of leave.

The pro­posal is for two and a half months of leave, which is again far short of the four months for nor­mal ma­ter­nity leave.

The cou­ple can de­cide which part­ner takes the 10 days of parental leave and which one takes the two and a half months.

Dud­ley rea­sons that the shorter pe­riod is jus­ti­fied be­cause phys­i­cal re­cov­ery time makes up part of ma­ter­nity leave and that the law, for in­stance, al­lows for one and a half months of leave to re­cover from a mis­car­riage. Two and a half months is then the re­main­der for ac­tual chil­drea­r­ing.

An amend­ment to the Ba­sic Con­di­tions of Em­ploy­ment Act to specif­i­cally ad­dress the con­tin­ued dis­crim­i­na­tion against gay cou­ples is long over­due.

Ear­lier this year, a case be­fore the labour court demon­strated the in­equity of the cur­rent ar­range­ments.

A ho­mo­sex­ual em­ployee of the State In­for­ma­tion and Tech­nol­ogy Agency (Sita) and his hus­band had com­mis­sioned a sur­ro­gate preg­nancy and ap­plied for ma­ter­nity leave when the baby was born.

Sita re­fused by ar­gu­ing that ma­ter­nity leave only ap­plied to women, and in­stead of­fered them the op­tion of un­paid leave. The rea­son­ing for how this squares with the Con­sti­tu­tion was that ma­ter­nity leave was, at least in part, re­lated to the phys­i­o­log­i­cal trauma of child­birth, not only to al­low­ing for care and a bond­ing pe­riod with the baby. This is the po­si­tion still taken in the ACDP’s bill.

The court dis­agreed and put car­ing for the child front and cen­tre as a ra­tio­nale for ma­ter­nity leave.

That rul­ing only ap­plied to that spe­cific case, but the judge noted that the Ba­sic Con­di­tions of Em­ploy­ment Act would need to be amended to ex­cise the in­her­ent dis­crim­i­na­tion of only giv­ing one kind of par­ent the le­gal right to take time off to look af­ter a new­born.

As a pri­vate mem­ber’s bill, the ACDP’s pro­posal will have to be re­ferred to the par­lia­men­tary com­mit­tee on labour by the Speaker and, if there is agree­ment, be de­bated be­fore it is sent to the de­part­ment of labour and taken through the nor­mal leg­isla­tive process.

PHOTO: IS­TOCK

NUR­TURER The ACDP wants fa­thers to have the right to pa­ter­nity leave

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