On 28 November 2017, Parliament passed the Labour Laws Amendment Bill (the Bill). The Bill provides for unpaid paternity leave, adoption leave and surrogacy leave for all employees who do not qualify for maternity leave. This is the first private member bill ever to be passed by South African Parliament.
Previously, employees who did not qualify for maternity leave were only entitled to three days paid family responsibility leave for the birth of the employee's child, or if the employee's child was sick, or in the event of the death of the employee's child.
Under the Bill:
- All fathers are entitled to at least 10 days of paternity leave;
- One adoptive parent who has adopted a child, who is less than two years old, will be entitled to adoption leave. If there are two adoptive parents, one will be entitled to 10 consecutive weeks of adoption leave and the other will be entitled to at least 10 days of paternity leave;
- One surrogate parent will be entitled to surrogacy leave for a period of up to 10 weeks and the other parent will be entitled to at least 10 days of paternity leave;
- Leave will also be applicable in the event of a miscarriage or a still born during the third trimester; and
- Fathers will be entitled to more family responsibility leave.
The Bill provides for certain conditions that must be met before paternity leave can be approved to prevent any abuse of these provisions. One of the conditions before paternity leave can be granted is that a father name must be on the birth certificate of a child. Paternity leave may only be granted once a year. In addition, should fathers not be fulfilling their paternal responsibilities during their paternity leave, a complaint can be lodged and the Unemployment Insurance Fund (UIF) may refuse to pay for their paternity leave.
The Bill also provides for an increase in maternity leave benefits and now provides for payment of parental benefits and surrogate parental benefits from the UIF.
Further, no collective agreements by bargaining councils may reduce an employee's entitlement to paternity leave, adoption leave or surrogacy leave.
This is of great significance in terms of recognising the rights of the LGBTQI (Gay, Bisexual, Transgender, Queer and Intersex) community as the Bill is gender neutral.
Employers may soon have to start taking the Bill into consideration when granting leave to employees as not only will paternal fathers be able to take leave but also the employees who are adoptive and surrogate parents.
The Bill will now be referred to the National Council of Provinces for adoption.
Written By Lauren Salt, Senior Associate and Tiisetso Rabolao, Candidate Attorney, Employment & Compensation Practice, Baker McKenzie Johannesburg