A village to raise a child, but who gets the leave?

Proposed changes to the Basic Conditions of Employment Act, No 75 of 1997 (BCEA) recognise changes in traditional family units and the important roles different people play in raising children.

Currently, if a new father wishes to take leave after the birth of his child, he must take family responsibility leave as per section 27 of the Act. The Act provides for three days paid leave per annual leave cycle.

Family responsibility leave is also available in the event of death of an immediate family member, spouse or life partner or the illness of a child, but is subject to limitations.

First, the father must have worked for his employer for a period of at least four months, and must work for at least four days a week before he is entitled to such leave. If a father has taken family responsibility leave (for whatever reason) in that leave cycle, he may have to apply for annual leave.

The Labour Laws Amendment Bill [PMB 5 – 2015] (Bill) proposes the insertion of three new sections on leave.

First, the Bill proposes a provision for “parental leave”, allowing a male or female parent 10 days’ leave on the birth or adoption of a child.

Second, it proposes “adoption leave”.

Currently, there is no such provision in the Act.

On granting of an adoption order, section 25B would entitle an employee to either 10 weeks’ consecutive leave, or the Parental Leave referred to earlier.

Should two parents be granted an adoption order, one will be eligible for adoption leave, and the other for parental leave - left to the parents to determine.

Notably, this leave is avail- able to any person, regardless of their gender or sexual orientation, who adopts a child younger than two at the time of the adoption order.

Finally, section 25C proposes “commissioning parental leave”.

A parent who is a commissioning parent in a surrogate motherhood agreement would also be entitled to 10 weeks’ commissioning parental leave or parental leave.

If two persons are the commissioning parents in the surrogate motherhood agreement, then the commissioning parents must elect which parent will take parental leave and which will get commissioning parental leave.

An employee need only inform the employer in writing of the intention to take such leave, and for how long, at least one month (or as soon as is reasonably practicable) before the expected date of birth or adoption of the child.

If an employee takes leave under any of these subsections, they are entitled to UIF benefits, subject to a determination by the Minister of Labour.

Unless there is a collective or individual agreement, an employer is not liable to pay the employee during any such leave period. The employee will only receive benefits from the UIF.

If the Bill is accepted, it would take important strides to accommodate the wide variety of family units that form part of our society.

• Fiona Leppan, Craig Thomas and Reabetswe Mampane are consultants at Cliffe Dekker Hofmeyr. • Image: Baby elephant hiding. Image Source: Eric Kilby Follow Baby, Creative Commons