For many years the prevailing body of case law and statutory development in the area of leave occasioned by the birth or prospective birth of a child has dealt almost exclusively with maternity and not paternity rights. The law as it stands on maternity leave is well known and governed by the corresponding provisions of the Labour Relations Act 66 of 1995 (the LRA) and the Basic Conditions of Employment Act 75 of 1997 (the BCEA).
Under the LRA, and more specifically, section 187 of the LRA, a dismissal on the basis of future or current pregnancy is considered an automatically unfair dismissal, meaning a dismissal to which an employer will have no defence once the employee shows that the dismissal was based on the prospective or current pregnancy of the employee. This is further confirmed at section 25 of the BCEA which grants the future mother an unequivocal and incontrovertible right to take an uninterrupted period of leave for 4 consecutive months to commence any time from 6 weeks before the birth of the child.
Correspondingly a father’s rights to paternity leave have traditionally been, at best, uncertain, and at worst, non-existent. This situation, however, is in the process of being remedied under the Labour Laws Amendment Bill 2015 (LLAB) which seeks to amend certain sections of the BCEA.
There has previously been no specific provision in either the LRA or BCEA giving a prospective father extended leave to spend with his new family and the most that a new dad could hope for from his employer was 3 days family responsibility leave. The proposed amendments to the BCEA provide a revolutionary opportunity for fathers-to-be to spend an extended period of time with their spouse or partner and their new baby.
The amendments proposed by the LLAB comprise the following regarding paternity leave and extended employee parental leave:
- An employee who is the parent of a child may now take at least 10 consecutive days of parental leave which commences on the day that the child is born or the adoption order granted;
- If an adopted child is below the age of 2 years an employee is entitled to claim at least 10 consecutive weeks of adoption leave which commences on the day that the adoption order is granted;
- If the parental leave is taken pursuant to a surrogate motherhood agreement the commissioning parent is allowed at least 10 consecutive weeks of leave which commences on the date of birth of the child.
It is worth noting that only one of the parents may take adoption or commissioning leave and that the remaining parent is bound to 10 days parental leave only. The decision as to which parent will apply for which type of leave is left to the parents themselves.
Not only is this a momentous step for paternity rights but also amounts to a huge leap forward regarding the rights of same-sex couples, especially men, who have never been, under our law, entitled to more than 3 days family responsibility leave each, to ensure that the new addition to their family can be introduced to their extended family and a familial bond created.
On 20 October 2017, Parliament’s Portfolio Committee on Labour issued an invitation to the public for comments on the Bill and its proposed amendments. Thereafter the Bill will move through the remainder of the legislative process.