Parliament has adopted the Labour Laws Amendment Bill with the view to regulate the right of paternal leave.
The Labour Laws Amendment Bill was first introduced to parliament in November 2015. Although it has been passed by the National Assembly, it has not yet been promulgated into law. It must still pass the review process by the National Council of Provinces and then authorised by the President.
What is the Bill looking to do?
A few things – it will provide for parental leave, adoption leave and commissioning parental leave. It also provides for the payment of parental benefits as well as commissioning parental benefits from the Unemployment Insurance Fund.
It aims to give employees who are parents (regardless of gender), parental, adoption and surrogacy leave as well as UIF benefits.
How many days paternity leave is allowed under the new Bill?
It will ensure that fathers have the right to 10 (ten) consecutive days leave when a child is born or adopted.
Current maternity leave rules
Basic Conditions of Employment Act (BCEA) provides 4 (four) months of maternity leave to female employees, which is paid for by the Unemployment Insurance Fund.
Currently paternity leave falls under the scope of family responsibility leave. As prescribed by the BCEA, male employees are entitled to 3 (three) days paid family responsibility leave following the birth of their child.
What happens now that the Bill has been passed?
There has been no separate statutory leave type to provide for paternity leave until now. On 25 November 2015 the draft Bill was published in the government gazette which proposes to amend the BCEA and the Unemployment Insurance Act.
The Bill, if passed, will entrench the right to claim payment of parental benefits, 10 (ten) consecutive weeks adoption leave if the child adopted is below the age of 2 (two), the right to claim payment of adoption benefits and 10 (ten) weeks ‘commissioning parental leave’ for employees in a surrogate motherhood agreement.
Additionally, if there are two adoptive parents, one of the parents may apply for parental leave and the other adoption leave. If there are two commissioning parents, one of the parents may apply for parental leave and the other parent may apply for commissioning parental leave.
This Bill could make South Africa one of the most progressive or liberal countries in the world in terms of paternity leave. Paternity leave globally swings wildly – from nothing, to a few days, a few weeks unpaid and South Korea which offers up to a year of paternity leave.