In this article, ENSafrica looks at a dramatic legislative shift which could soon see the following fundamental changes to South Africa’s employment law:

· the effective recognition that fathers (or other parents, whether male or female, who may not otherwise be entitled to maternity leave) will be entitled to what is being referred to as “parental leave”;

· the formal recognition of “adoption leave” by law;

· the statutory recognition of leave in the case of a child who is born in terms of a surrogate motherhood agreement (whether the parent is male or female); and

· the resultant repeal of the existing family responsibility leave insofar as it relates to the birth or adoption of a child, in the face of all of these new forms of leave.

If enacted, these amendments will go even further than the principles already set out in the case of MIA v State Information Technology Agency (Pty) Ltd, and will dramatically alter the approach to granting leave relating to the birth or adoption of a child.

The Labour Laws Amendment Bill (“LLAB”)

In November 2015, a member of Parliament representing the African Christian Democratic Party introduced the LLAB as a private member’s Bill. If passed, the Bill could introduce significant changes to the way leave is regarded in South Africa.

Private members’ Bills are introduced by members of Parliament, as opposed to ministers. The first step in the parliamentary process is that a Bill is usually considered by the relevant portfolio committee. Typically, private members’ Bills do not make it past the committee stage of Parliament. This is because private members’ Bills have thus far been drafted by members of opposition parties and, when it has to be decided whether the Bill should progress further in the parliamentary process, members of the majority party generally vote against the Bill progressing.

However, despite being a private member’s Bill, the LLAB has received support from most parliamentary parties, as well as the Congress of South African Trade Unions (“COSATU”). In November 2016, the Portfolio Committee on Labour voted in favour of the LLAB being referred to the National Assembly, subject to certain technical amendments proposed by the committee. The National Assembly will be requested to amend the LLAB in accordance with the committee’s decision. Considering that Parliament will be spending most of February and March debating the President’s State of the Nation Address and the Budget Speech, it is unlikely that the LLAB’s amendments will be considered by the National Assembly during the first term of Parliament in 2017, unless there is the appropriate political will.

Given the cross-party support for the LLAB, there is a realistic chance that it will be enacted by Parliament. If this happens, the following key changes regarding leave in South Africa could become law:

· an entitlement to parental leave will be introduced. An employee who is a parent will be entitled to at least 10 consecutive days’ parental leave. This will commence on the date that the employee’s child is born; the date that an adoption order is granted; or the date that a child is placed in the care of a prospective adoptive parent by a court, pending the completion of a final adoption order. The requirement that the employee must have worked for at least four months before such leave can be taken, as is the case with the current family responsibility leave, is not set. This form of leave will, in effect, create a right to what is colloquially known as “paternity leave”.

· adoption leave will be granted to an employee, regardless of gender, who is an adoptive parent of a child who is below the age of two. The adoptive parent will be entitled to adoption leave of at least 10 consecutive weeks or parental leave of 10 consecutive days. The reason for the two different forms of entitlement is that if an order for adoption is made for two parents to adopt a child, one parent may apply for parental leave of 10 consecutive days and the other parent may apply for adoption leave of 10 consecutive weeks.

· commissioning parental leave would entitle an employee who is a commissioning parent in a surrogate motherhood agreement to either 10 weeks’ commissioning parental leave or parental leave of 10 consecutive days. A “commissioning parent” is a person who enters into a surrogate motherhood agreement with a surrogate mother. This is the same situation as that in the MIA case. A commissioning parent can be any gender and there could be more than one commissioning parent. Where there are two commissioning parents, one commissioning parent will be allowed 10 weeks’ consecutive leave in the form of commissioning parental leave and the other will then be entitled to parental leave of 10 consecutive days.

· various amendments to the Unemployment Insurance Act, 2001 have also been suggested, which will allow those who take parental leave, adoption leave or commissioning parental leave to claim parental benefits when such leave is taken.

· the right to take family responsibility leave when a child is born, as is currently the case, will be repealed, and employees who become parents will instead be entitled to take parental leave, adoption leave or commissioning parental leave.

The LLAB’s amendments are yet to be tabled in the National Assembly. However, should they be tabled and passed in the National Assembly, the LLAB (with amendments) will be sent back to the Portfolio Committee on Labour to be adopted as a whole. Once adopted, the LLAB will be voted on in the National Assembly to determine if it will be passed. If passed, it will be sent to the President for signature in order to become law.

However, considering the largely unprecedented multiparty support for this Bill, including the support of trade unions, it would seem that the LLAB is likely to be passed and that this might take place soon, considering that most of the time-consuming work in Parliament has been completed.

There is, however, one potential issue that has to be ironed out. The explanatory memorandum to the amended LLAB states that the National Economic Development and Labour Council (“NEDLAC”) was consulted on the Bill, as is envisaged by the NEDLAC Act, 1994, but there appears to be uncertainty as to whether this occurred. At this stage, it is unclear whether this potential dispute will affect the LLAB’s progress.

Nevertheless, it is estimated that, depending on the efficiency and will of Parliament and the President, the LLAB might become law in the latter part of 2017. Businesses should therefore start preparing for the possibility of a range of differing parental leave requirements and for more leave being taken by employees.

For more information or assistance in preparing for these anticipated changes, please contact:

Alex Ferreira

employment director

[email protected]

cell: +27 82 787 9606

Jan Norval

employment associate

[email protected]

cell: +27 82 310 1982