On 23 November 2018, President Cyril Ramaphosa signed the Labour Law Amendments Act of 2018 into law. The Act covers the new provisions regarding parental, adoption and commissioning parental leave in terms of the Basic Conditions of Employment Act. It also deals with certain changes to the Unemployment Insurance Act.

It has been widely assumed that these changes came into effect on 1 January 2019. This is not the case.

The truth is that the Act will only come into effect on a date fixed by the President by proclamation in the Gazette. We expect this to occur in the near future and shall keep our readers updated.

SUMMARY OF CHANGES i.t.o LABOUR LAW AMENDMENTS ACT OF 2018

Parental, adoption and commissioning parental leave

The Basic Conditions of Employment Act (BCEA) is due to change to make provision for three new categories of leave.

The first category is parental leave that relates to the birth of a child. An employee who is a parent of a child will be entitled to 10 consecutive days’ parental leave. This will effectively replace the three days’ paternity leave currently provided for in the BCEA, but the current maternity leave provisions in the BCEA remain unchanged. Parental leave may commence on the day the child is born. The employee will have to give at least one month’s written notice of the date or the expected date of birth, as well as when the leave is due to commence and when the employee will return.

The second category is adoption leave that relates to the adoption of a child that is below the age of two. A single adoptive parent is entitled to 10 consecutive weeks’ leave. If there are two adoptive parents, the other would be entitled to 10 consecutive days’ normal parental leave. It is up to the adoptive parents to decide who takes adoption leave and who takes normal parental leave. Leave can commence on the day that the adoption order is granted. The notice requirements are similar to that of parental leave.

Finally there is the so-called commissioning parental leave that relates to surrogate motherhood. The commissioning parent who will primarily be responsible for looking after the child (primary commissioning parent) will be entitled to commissioning parental leave. If there are two commissioning parents, they can choose: if the one takes commissioning parental leave, the other can take normal parental leave. The one who takes commissioning parental leave will be entitled to 10 consecutive weeks’ leave. The other would be entitled to 10 consecutive days’ normal parental leave. In both cases leave can commence on the date of the birth of the child. The notice requirements are similar to that of parental and adoption leave.

The good news from an employer’s point of view, is that remuneration will be covered by the Unemployment Insurance Fund. The current right to three days’ paid ‘paternity’ leave will fall away.

We shall deal with the finer details of these changes and their practical implications once the implementation date of the amendments is known.

Unemployment Insurance

The Unemployment Insurance Act (UIA) will be amended to make provision for the payment of employees when they take leave in terms of the new categories mentioned above.

While the current provisions of the BCEA regarding maternity leave will remain unchanged, mothers on maternity leave will receive increased benefits in terms of the UIA. They will receive 66% of their earnings, subject to the maximum income threshold. A specific provision has been added that the payment of maternity benefits will not affect the payments of unemployment benefits. So, if a mother loses her job, she will still have access to all the other unemployment benefits that she has accrued.

Foreign nationals and employees employed in terms of learnership agreements will be able to claim benefits.

There are several other beneficial changes to the UIA, but we shall deal with these in more detail as soon as we have clarity on the implementation date.

Written by Jan Truter, Labourwise