Legal Matters

The Latest on Maternity and Paternity Leave

By Naledi Mokoena

In a progressive workplace, parental leave is a crucial factor which supports the welfare of families and employees. Shared parental leave is gradually gaining recognition across Africa, however many countries still lack paid paternity leave.

The global average according to the World Economic Forum stands at 21 days compared to 191 days for maternity leave. According to the Top Employers Institute, parental leave refers to time allocated to parents to take care of their new infant or newly adopted child, for the purpose of parents balancing personal and professional responsibilities.

Parental leave also applies in cases where an employee legally adopts a child or is a newly court-appointed parent. In terms of the Basic Conditions of Employment Act of section 25A 1997 (BCEA), an employee is entitled to 10 days unpaid parental leave amidst the birth of an employee's child. The World Economic Forum also states parental leave addresses imbalanced gender roles, with reference to the unpaid care economy. Hence women shoulder 76 percent of unpaid leave.

A Breakthrough in Parental Leave

Working mothers can now get the assistance and support they require from their partners postnatal. Men are entitled by law to be granted parental leave, in accordance with the South African labour law. A breakthrough in judgement took place as of 25 October 2023 stating the Gauteng High Court of South Africa grants both parents parental leave in the case of Van Wyk and others versus the Minister of Employment and Labour Thulas Nxesi.

The verdict was a result of the couple's actions against the Labour Department, arguing it was unfair to only permit birth mothers maternity leave when both parents could be the primary income household earner.

Previously, fathers were only provided with 10 days paternity leave. In addition to adoptive mothers who were opposed to the 16 week provision of birth mothers. In the case of the Van Wyks, the mother was a business owner while the father was working in a corporate position. When they welcomed their first child, the current policy did not allow them to divide the leave in a way suitable to their family’s needs, subsequently taking legal action in court.

This ruling is a breakthrough due to the court officially determining the Basic Conditions of Employment Act (which applies to all South African employees and employers except for National defence Force members). The ruling will now allow for the same choice and rights to adoptive parents with children under the age of two and parents whose children may have been born by surrogacy. In addition the ruling works to acknowledge better primary care work and equal access to leave, due to provision to equal rights for all parents irrespective of their gender and circumstances.

Therefore the Van Wyk’s can now divide the four months of leave, (previously only provisioned to new birth mothers) in a manner they see fit, pending the sign off by parliament to make it official.

According To Employment Law Alliances Here Is What You Need To Know About Parental Leave Today

New Leave Provisions:

South African parents are now entitled to four months of parental leave, despite the circumstances such as adoption, birth or for commissioning parental leave. This a notable rise from the initial ten days allocated for parental leave.

Employer Policy Adjustments:

This refers to employers adapting their leave policies to comply with the current provisional measures. This is to ensure employees receive at least the minimum stipulated leave. However employers are not limited to offering additional leave days.

Confirmation From Constitutional Court:

The recent changes are not yet in force and the current laws still remain in effect. They will only become effective once the Constitutional Court confirms its decision.

Sharing Leave For Couples:

In the case of couples sharing the four-month allocated leave, they need to decide how they are going to split it evenly according to their immediate needs.

Employee Retention and Productivity

Through the provision of parental leave, businesses demonstrate investing in their employees throughout various milestones. In instances where employees feel valued and supported, they are more likely to be more committed and productive. This investment facilitates employee loyalty and ultimately increases retention rates

Gender Equality

By providing equal parenting leave for both parents, employers can set the standard to equally divide caregiving responsibilities to create a more feasible workplace.

According to Top Employment Institute’s Karen Muller the rise of employee wellbeing is accompanied by a key focus on diversity, inclusion and equity, facilitating a platform to have these discussions. “Supporting gender equality in infant primary care, the most critical period of infancy, will go a long way in empowering women as well. In the world of work, sustainability of policies and practices are deeply considered before recommending them as best practices; this ruling has added yet one more step towards developing a better world of work.”

Source: Top Employers Institute / Labour Guide / Employment Law Alliance