On 1 January 2020, Sections 1 to 7 of the Labour Laws Amendment Act of 2018 were enacted, introducing changes to the Basic Conditions of Employment Act (BCEA). These changes were aimed at incorporating provisions for parental, adoption, and commissioning parental leave. These specific sections complemented Section 25 of the Act, which addresses maternity leave, and they established the framework for unpaid leave, with the expectation that individuals could claim payments from the Unemployment Insurance Fund.
In 2022, the constitutionality of these afore-mentioned sections of the Act were tested in the High Court in the case of Werner Van Wyk & 3 others v the Minister of Employment and Labour (case number 017842-2022). The court issued its judgment on 25 October 2023.
Mr Werner van Wyk and Mrs Ika van Wyk (first and second Applicants) were aggrieved about the fact that only female employees are entitled to four (4) months’ leave after the birth of a child, so they decided to challenge the constitutionality of the section 25, 25A, 25B and 25C of the Basic Conditions of Employment Act. They also challenged the constitutionality of section 24, 26A, 27 and 29A of the Unemployment Insurance Fund Act of 2001.
Mr Van Wyk holds a salaried position, while Mrs Van Wyk manages her own business. Mrs Van Wyk had to resume to her business activities promptly since the business could have faced failure if she did not stay actively involved. Consequently, MrVan Wyk took on the primary caregiving role during the early stages of their child’s life. It’s evident that maternity leave did not apply to Mrs Van Wyk and Mr Van Wyk was not eligible for more than 10 days of “paternity leave”. Instead, he opted for an extended leave period, which included unpaid leave, arranged informally with his employer. He did not have the entitlement to receive any benefits from the Unemployment Insurance Fund (UIF).
As per the Applicants’ arguments raised in terms of sections 9 and 10 of the Constitution, they argued that the legislation at hand is unfair for the following reasons:
- It unjustly discriminates between mothers and fathers.
- It is perceived as unjustly discriminating among different categories of parents based on whether their children:
- Were born to the mother.
- Were conceived through surrogacy.
- Were adopted.
It was argued that distinctions are being drawn between mothers and fathers and also among birth mothers and other types of mothers or parents. To summary the claims and the relief sought by the applicants involved:
- To declare Section 25(1) unconstitutional because there are no valid reasons to differentiate between one parent-employee and another. Therefore, both parents should have an equal entitlement to parental leave, and failure to provide such equality is considered unfair discrimination that infringes upon the dignity of all parents.
- The disparities in the duration of prescribed leave available to each of the three categories of parents, namely, birth mothers and fathers, adoptive parents, and parents of children born through surrogacy, are to be declared as unfair discrimination that undermines the dignity of all parents. It was argued that all categories should have equal leave entitlements.
- The concept that the prescribed leave is only available to adoptive parents for children under two years of age was challenged as irrational and as unfair discrimination.
The Court’s reaction:
The court held that the Van Wyk model was not catered for by the BCEA and no sound reason existed for it not to do so. Parliament must now work on eliminating these inequalities and they have two years to do so.
In the meantime, the following interim changes will be applicable:
In section 25(1), the provisions are deleted and substituted with:
‘An employee who is a single parent is entitled, and employees, who are a pair of parents, are collectively entitled, to at least four months’ consecutive months’ parental leave, which, in the case of a pair of parents, be taken in accordance with their election, as follows:
(a) One or other parent shall take the whole of the period, or
(b) Each parent shall take turns at taking the leave.
(c) Both employers must be notified prior to the date of birth in writing of the election and if a shared arrangement is chosen, the period or periods to be taken by each of the parents must be stipulated’.
In section 25(2) the word ’employee’ shall be substituted with the word ‘pregnant mother’
In section 25, wherever the word ‘maternity’ appears it shall, where the context requires, be read as ‘parental’.
Section 25A (1) is deleted and substituted with:
‘An employee who is a parent of a child is entitled to the leave stipulated in section 25(1)’.
Section 25A (2)(a) is amplified by the addition after the word ‘born’:
‘subject to the provisions of section 25(2)’
Section 258(1)(b) is deleted and substituted with:
‘the leave stipulated in section 25(1)’.
Section 258 (6) is deleted and substituted with:
‘If an adoption order is made in respect of two adoptive parents, they shall each. be entitled to leave as stipulated in section 25(1)’.
In Section 25C (1) the provisions are deleted and substituted with:
‘An employee who is a commissioning parent in a surrogate motherhood agreement is entitled to leave as stipulated in section 25(1).’
Section 25C (6) is deleted and substituted with:
‘Where there are two commissioning parents, they shall each be entitled to leave as stipulated in section 25(1).’
The provisions of sections 25 (7), 25A (5) and 258 (5) and 25C (5) and the corresponding provisions in the UIF Act, sections 24, 26A, 27, 29A, shall be read to be consistent with changes effected by this order and, accordingly, each parent who is a contributor, as defined in the UIF Act, shall be entitled to the benefits as prescribed therein.
This marks a new era of a more inclusive and equitable society, as well as recognising the diversity of modern family structures and that both parents play an integral part in the nurturing of children.
For more information regarding parental leave, parental leave policies and/or any HR/labour law issues, contact info@law-at-work.co.za.