Paternal leave for new dads planned

The Basic Conditions of Employment Act could soon stipulate a new type of leave for fathers.

An employee who becomes a parent and is not entitled to maternity leave, will now be entitled to 10 days.

Aproposed amendment to the Basic Conditions of Employment Act, 75 of 1997, was recently passed in the form of the Labour Laws Amendment Bill which would introduce a new type of parental leave.

This Bill still needs to go through the National Council of Provinces and then be signed by the president.

The Bill specifies that an employee who is a parent of a child will be entitled to 10 days parental leave, which may be granted from the day of the child’s birth or the day of a child’s adoption order being granted.

The Bill doesn’t specify paternity leave but rather makes provision for parental leave which could apply to both male and female employees.

For this reason, the Labour Laws Amendment Bill is unclear how this parental leave type is going to complement maternity leave, ie if a female employee takes maternity leave, is she also entitled to parental leave?

An explanatory memorandum to the Bill states that the intention of the insertion of the provisions is so that “an employee who is a parent and who is not entitled to maternity leave, is entitled to 10 days parental leave when that employee’s child is born or when an adoption order is granted”.

The underlined wording didn’t make it into the Bill, so there’s the possibility for some confusion. Once assented and enacted, the Bill may clarify this position. Adoption leave is also provided for an employee who is an adoptive parent. They’ll be entitled to 10 weeks’ consecutive adoption leave. The Bill specifies that if an adoption order is granted in respect of two parents, one will be entitled to adoption leave (10 weeks) and the other to parental leave (10 days). At present, however, it’s clear that male employees who become parents will now be entitled to at least the 10 days parental leave.

Although parental leave has been widely touted as a paid form of paternity leave, it’s an unpaid leave by the employer. Although there’s no obligation for an employer to pay any salary to an employee who takes such leave, payment to the employee will come from the Unemployment Insurance Fund (UIF) – with a requirement that the person must have 13 weeks of prior employment.

This is a similar employer non-payment/UIF benefit structure that applies with maternity leave, which is unpaid by the employer but which entitles the female employee to claim a portion of salary from the UIF.

Largely, these amendments have been made to cater for the best interests of children in families with working and/or adoptive parents. These amendments have also provided for families in the LBGTQI community.

Previously, gay men would not be able to take leave upon the adoption of a child/birth of a child carried by a surrogate due to them both being male employees.

Bradley Workman-Davies is a director at Werksmans Attorneys.

It’s unpaid leave, but can be claimed from UIF