JOBLINKS MALE EMPLOYEES ARE NOW ENTITLED TO “MATERNITY” LEAVE

MALE EMPLOYEES ARE NOW ENTITLED TO “MATERNITY” LEAVE


MALE “MATERNITY” LEAVE NOW A REALITY

On 1 January 2020 sections 1 to 7 of the Labour Laws Amendment Act of 2018 became effective, amending the Basic Conditions of Employment Act to provide for parental, adoption and commissioning parental leave.

These sections supplement section 25 of the Act dealing with maternity leave and provides for unpaid leave. Payment is to be claimed from the Unemployment Insurance Fund.

In 2022 the constitutionality of the aforementioned sections of the Act were challenged and considered by the High Court in Werner Van Wyk & 3 others v the Minister of Employment and Labour (case number 2022-017842), handed down on 25 October 2023.

Section 25 of the Act provides for 4 months’ unpaid maternity leave for female employees. A pregnant employee may commence maternity leave at any time from four weeks before the expected date of birth unless otherwise agreed or at any time a medical practitioner deems fit for health reasons of either the mother or baby.

In terms of sections 25A of the Basic Conditions of Employment Act, an employee is entitled to 10 days parental leave upon the birth of the employee’s child. Parental leave may also be applicable in circumstances where an employee legally adopts a child or when a child is placed by a court in the care of a prospective adoptive parent.

Section 25B of the Act deals with leave for the adoption of a child younger than two years. In terms of section 25B one adoptive parent is entitled to 10 weeks adoption leave and the other to 10 days parental leave as per section 25A (depending on which one takes the 10 weeks leave).

Section 25C provides for one of the commissioning parents in a surrogate motherhood agreement to take 10 weeks consecutive leave and the other, depending on who takes the 10 weeks leave, 10 days commissioning parental leave as per section 25A.

Considering these sections of the Act, it is evident that both male and female employees may qualify for the aforementioned types of leave, depending on the circumstances. However, only a pregnant female employee can qualify for maternity leave as per section 25 of the Act.

Is it discriminatory?

Disgruntled about the fact that only female employees are entitled to 4 months’ leave after giving birth, Mr and Mrs Van Wyk (the first and second Applicants), with Sonke Gender Justice and the Commission for gender Equality (the third and fourth Applicants), challenged the constitutionality of sections 25, 25A, 25B and 25 C of the Basic Conditions of Employment Act. They also challenged the constitutionality of sections 24, 26A, 27 and 29A of the Unemployment Insurance Fund Act of 2001.

Mr Van Wyk is a salaried employee. Mrs Van Wyk is in business for her own account. They preferred that Mrs Van Wyk return to trade as soon as possible because the business may have failed if she did not remain active. In turn, Mr Van Wyk was the primary caregiver during the early infancy of their child. Obviously, no question of maternity leave arose for Mrs Van Wyk. Mr Van Wyk was ineligible for any more than 10 days’ paternity leave. What he did do was to take extended leave, partly unpaid, from his employer by means of an ad hoc arrangement. He was not entitled to any UIF pay-out.

According to the Applicants, the mentioned legislation, in terms of sections 9 and 10 of the Constitution:

1. Unfairly discriminate between mothers and fathers.

2. Unfairly discriminate between one set of parents and another on the basis whether their children:

2.1 Were born of the mother.

2.2 Were conceived by surrogacy.

2.3 Were adopted.

It was submitted that there is a differentiation made between mothers and fathers and between a birth-mother and other mothers or parents. The claims made and relief which was sought by the applicants, in simple terms, can be described as follows:

· Section 25(1) is unconstitutional because no valid grounds exist to distinguish one parent-employee from another. Thus, both parents should be entitled to parental leave in equal measure and the failure to provide so is unfair discrimination and violates the dignity of all parents.

· The differentiation in the duration of prescribed leave available to each of the three classes of parents, i.e., a birth mother and father; adoptive parents and parents of a child born through surrogacy, constitutes unfair discrimination and violates the dignity of all parents. It was contended that all categories should enjoy an equal duration of leave.

· The notion that the prescribed leave is available to adoptive parents only in respect of a child of less than two years of age was challenged as irrational and as unfair discrimination.

The outcome.

The court held that there was a violation of section 9 of the Constitution. The Van Wyk family model was not catered for by the BCEA and no sound reason existed for it not to do so. The Van Wyk family’s dynamic is wholly consistent with norms that the Constitution exalts. The Sections in the BCEA (25, 25A, B and C) offend sections 9 and 10 of the Constitution. Parliament must now get to work to eliminate these inequalities and have two years to do so.

Various interim orders suggested by the various applicants differed in line with the different relief sought by them. The court favoured the Van Wyk’s proposal in that all parents of whatever stripe, enjoy 4 consecutive months’ parental leave, collectively. In other words, each pair of parents of a qualifying child shall share the 4 months leave as they elect.

Accordingly, the following interim changes will be applicable:

§ In section 25(1), the provisions are deleted and substituted with:

‘An employee who is a single parent is entitled, and employees, who are a pair of parents, are collectively entitled, to at least four months’ consecutive months’ parental leave, which, in the case of a pair of parents, be taken in accordance with their election, as follows:

(a) One or other parent shall take the whole of the period, or

(b) Each parent shall take turns at taking the leave.

(c) Both employers must be notified prior to the date of birth in writing of the election and if a shared arrangement is chosen, the period or periods to be taken by each of the parents must be stipulated’.

§ In section 25(2) the word ’employee’ shall be substituted with the word ‘pregnant mother’

§ In section 25, wherever the word ‘maternity’ appears it shall, where the context requires, be read as ‘parental’.

§ Section 25A (1) is deleted and substituted with:

‘An employee who is a parent of a child is entitled to the leave stipulated in section 25(1)’.

§ Section 25A (2)(a) is amplified by the addition after the word ‘born’:

‘subject to the provisions of section 25(2)’

§ Section 258(1)(b) is deleted and substituted with:

‘the leave stipulated in section 25(1)’.

§ Section 258 (6) is deleted and substituted with:

‘If an adoption order is made in respect of two adoptive parents, they shall each. be entitled to leave as stipulated in section 25(1)’.

§ In Section 25C (1) the provisions are deleted and substituted with:

‘An employee who is a commissioning parent in a surrogate motherhood agreement is entitled to leave as stipulated in section 25(1).’

§ Section 25C (6) is deleted and substituted with:

‘Where there are two commissioning parents, they shall each be entitled to leave as stipulated in section 25(1).’

§ The provisions of sections 25 (7), 25A (5) and 258 (5) and 25C (5) and the corresponding provisions in the UIF Act, sections 24, 26A, 27, 29A, shall be read to be consistent with changes effected by this order and, accordingly, each parent who is a contributor, as defined in the UIF Act, shall be entitled to the benefits as prescribed therein.

Adoption of a child younger than two years?

Turning to the question as to whether the two-year age limit set in section 25B of the Act constitutes discrimination, it was held that such does not offend the scope of the intended benefit. As such it does not trigger a convincing complaint of unfair discrimination.

What next?

The declaration of invalidity is suspended for a period of two years during which Parliament will have to make substantive changes to the BCEA to cure the discussed defects. The interim order will prevail during the two-year period.

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