Parental benefits, in terms of the Basic Conditions of Employment Act, Effective 1 January 2020

On 23 December 2019 a proclamation was published in terms of which sections 1, 2, 3, 4, 5, 6, and 7 of the Labour Laws Amendment Act 10 of 2018 (“LLAA”) became effective as of 1 January 2020.

This is in addition to those provisions of the LLAA which came into effect on 1 November 2019. While those prior amendments impacted the Unemployment Insurance Act 63 of 2001 (“UI Act”), by providing for the payment of unemployment insurance benefits for parents who are on parental leave, the recent amendments impact, mainly, the Basic Conditions of Employment Act 75 of 1997 (“BCEA”).

Amendments: Effective 1 January 2020

The LLAA amends the BCEA by –

(1) inserting definitions into the BCEA, which include: ‘adoptive parent,’ ‘adoption order’and ‘prospective adoptive parent.’ The additional terms are defined in accordance with their respective definitions in the Children’s Act 38 of 2005 (“CA”);

(2) providing that an employee, who is a parent of a child, is entitled to at least ten consecutive days’ parental leave. The parental leave may commence on the day that the employee’s child is born or whichever is earlier: the date that the adoption order is granted; or the date that a child is placed in the care of a prospective adoptive parent by a competent court, pending the finalisation of an adoption order in respect of that child;

(3) providing that an employee, who is an adoptive parent of a child who is below the age of two, is entitled to adoption leave of at least ten weeks consecutively or the parental leave referred to above;

(4) providing that an employee, who is a commissioning parent in a surrogate motherhood agreement, is entitled to a commissioning parental leave of at least ten weeks consecutively or the parental leave referred to above. The definition of ‘commissioning parent’ as well as ‘surrogate motherhood agreement’ has the meaning assigned to it in the CA.

(5) providing that a collective agreement concluded in a bargaining council may alter, replace or exclude any basic condition of employment if the collective agreement is consistent with the purpose of the BCEA and the collective agreement does not reduce an employee’s entitlement to parental leave, adoption leave, and to commissioning parental leave.

So what do the amendments mean for employers?

The amendments are of significant importance in that it provides employees with the right to the above-mentioned leave and, conversely, imposes anobligation on employers to provide same. It is important for employers to adequately cater for these provisions in their policies and procedures. We can assist in updating same to take into account the recent amendments

Jacques van Wyk, Director at Werksmans Attorneys .

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