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Change to length of paternity leave is a good start but more can be done


Elisabeth Makumbi is a former contractor at the World Bank Group, Women, Business and the Law project.

The new amendments to the Basic Conditions of Employment Act as they pertain to paternity leave are noble. Over time, hopefully 10 days can be extended to a greater number but only when coupled with the requisite externalities and considerations. In the meantime, companies can do more by offering flexible working hours, reduced hours, options to work remotely, to name but few.

I am a career-driven-millennial-woman with no kids, a slight avocado addiction and a penchant for blaring my unsolicited opinion across social media platforms. But I am mindful that one day this will change – especially wanting children. Maybe, I will have a child – possibly even two. But when I have a child – how will it affect my career?

Will taking maternity leave jeopardise my career progression? Can I effectively and simultaneously balance the obligations of my job and handle the responsibilities of being a new mother? Will the father have the chance to bond with the newborn? Will another CEO (or former) from a SAICE-like platformexplain” to me that, as a woman I will “not occupy a (top) position as (I) would rather have the flexibility to dedicate (myself) to more important enterprises like family and raising children’?” Or will government promulgate meaningful policies, laws and strategies to ensure women’s economic participation in the labour market. These are only some of concerns both current and prospective working mothers share and wilfully dread.

Maternity leave is regulated under section 25 of the Basic Conditions of Employment Act of 1997 and provides mothers with four consecutive months of statutory leave. South African law effectively builds on the recommendations in the International Labour Organisation which suggests a duration of 14 weeks and a wage compensation of at least 66.7% of earnings which is ideally allocated through social insurance and public funds. Fathers, on the other hand, were entitled to a mere three days of paternity leave to bond, care and bear the array of caregiving responsibilities needed to raise a newborn child.

Fortunately, in November 2018, President Cyril Ramaphosa signed into law four new bills, particularly the Labour Laws Amendment Bill. The objective of the Bill was to amend the Basic conditions of Employment Act 75 of 1997 (BCEA) so as to introduce parental leave, adoption leave and commissioning parental leave. Thus, the amendment allows for:

  • Ten consecutive days of parental leave for an employee who is parent of a child;

  • Adoption leave of at least 10 consecutive days for an employee who is an adoptive parent of a child below the age of two;

  • At least 10 consecutive weeks or at least 10 consecutive days of parental leave to an employee who is commissioning parent in a surrogacy agreement.

Virtuously, this is a step in the right direction. Parental leave entitles parents (both mother or father) to receive a salary while they are on leave to care for the new-born child. Additionally, the advent of parental leave encourages women to remain in workforce even after starting a family. It will also contribute to the equitable distribution of care work as the new requirement recognises the role both parents play in providing care-giving duties towards their children. Indeed, this is a tremendous feat for attaining gender equality in the workplace and the economic empowerment of women in South Africa. But, is 10 days enough?

On the international platform, there are certain countries which have implemented parental leave policies and laws into their legislative framework. According to the Women Business and the Law report, in 2015 the United Kingdom reformed its leave policies so that 37 weeks of paid maternity was taken as shared, paid paternal leave. In Norway, 70 days of the total postnatal parental leave period are reserved for each parent. Whereas in Portugal, parents who share the initial 120 days of parental leave will also receive an additional, 30 days. Notably, the examples provided are from middle to higher economies with the financial and economic resources to offer such provisions in their laws. But these examples are still essential illustrations of the international regulatory environment regarding parental leave schemes.

On the continent, South Africa is commendably the first country in Sub-Saharan Africa to promulgate parental leave benefits to both parents (including to surrogates and adoptive parents) so there is no data to compare whether 10 days is sufficient.

Nevertheless, there are still examples in South Africa where the right to parental leave was required at local level. In the case of MIA v State Information Technology Agency (Agency), an employee of the Agency, who was also in a civil union, entered into a surrogacy agreement with a surrogate mother. The spouses agreed that the employee would undertake the responsibilities associated with being the birth mother. In anticipation of the birth of their child, the employee applied for paid maternity leave for four months, but the Agency refused to grant the leave since the employee was not the biological mother. The matter was referred to the CCMA where the employer argued that the Agency’s policies and the BCEA only covered female employees and did not encompass surrogate parents. Evidentially, the Labour court ruled in favour of the employee as “there is no reason why an employee in the position of the applicant should not be entitled to ‘maternity leave’ and equally no reason why such maternity leave should not be for the same duration as the maternity leave to which a natural mother is entitled“.

This predicament would not have occurred if the BCEA encompassed a provision on parental leave, adoptive parents and commissioning parent/s in a surrogacy agreement. The case also highlights that 10 days may not be enough for the respective parties especially since women rightfully receive 4 months to assume the same tasks.

The new amendments to the BCEA are noble. Over time, hopefully 10 days can be extended to a greater number but only when coupled with the requisite externalities and considerations. In the meantime, companies can do more by offering flexible working hours, reduced hours, options to work remotely, to name but few. This will encourage a progressive, forward-thinking and health work-life balance to alleviate at least some of the pressures burgeoned by parenthood for both current and prospective working mothers and fathers. DM


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