Paid Paternity Leave – Misleading

Paid Paternity Leave – Misleading

Human Resources

Together with the NMW Bill, three other bills were also signed into law on the same day in November 2018. These are the Labour Laws Amendment Bill, amendments to the Basic Conditions of Employment Act, and the Labour Relations Amendment Bill.

The most important aspect of the Labour Law Amendment Bill is that it allows for all parents, including fathers, same-sex couples, adoptive and surrogate parents, to access leave as follows:

  • An employee, who is a parent of a child, is entitled to ten consecutive days of parental leave;
  • An employee, who is an adoptive parent of a child below the age of two, is entitled to:
    • Adoption leave of at least ten consecutive weeks; or
    • At least ten consecutive days of parental leave
  • An employee, who is a commissioning parent in a surrogacy agreement, is entitled to:
    • Commissioning parental leave of ten consecutive weeks; or
    • At least ten consecutive days of parental leave.

The Labour Laws Amendment Act, 2018 also amends the Basic Conditions of Employment Act, 1997 to insert new definitions and make provision for parental, adoption and commissioning parental leave to employees.

It should be noted that a collective agreement may not reduce an employee’s entitlement to parental, adoption or commissioning parental leave.

In addition to this, the Unemployment Insurance Act, 2001, was also amended to make provision for the right to claim parental and commissioning parental benefits from the Unemployment Insurance Fund.

Practical Application:

While the legislation is clear on what was intended in relation to parental leave in practice the reporting by national newspapers has lead to a difficult situation for employers.

It was widely reported that employees would be entitled to paid paternity leave. We can assume reporters did understand the distinction that the “paid” element would be through claiming UIF, as opposed to employers having to foot the bill. Nevertheless, this has created an expectation of payment which cannot be met until the Department of Labour claims processes and the Unemployment Insurance Amendment Act and BCEA are amended to allow applicants to actually claim for this leave. In the interim, we recommend employers communicate internally their approach to paternity leave and look to amend their internal policies when practical to do so.