An Update on the New BCEA Leave Provision

Apr 29, 2024


Landmark Judgement: What is the effect?

In Van Wyk and Others v Minister of Employment and Labour the court found certain provisions of the BCEA and the corresponding provisions of the UIF Act to be invalid by reason of inconsistency with sections 9 and 10 of the Constitution as they unfairly discriminate between parents of a child.

Previously, the Basic Conditions of Employment Act (BCEA) afforded biological mothers four consecutive months unpaid maternity leave and biological fathers were entitled to utilise the three days’ family responsibility leave, alternatively, they would be obliged to apply for annual leave or take a period of unpaid leave.

New forms of “parental leave” were introduced with effect from the 1st of January 2020. Whilst biological mothers still enjoy four consecutive months unpaid maternity leave, biological fathers have since been afforded ten consecutive days’ unpaid parental leave. In the case of adoptive parents, one adoptive parent now enjoys ten consecutive weeks’ adoption leave and the other, ten consecutive days’ parental leave. It remained with the adoptive parents to decide who takes adoption leave and who takes parental leave. Similar entitlements apply to commissioning parents in the case of surrogate motherhood. Although maternity and other forms of parental leave are unpaid, the right to claim benefits from the Unemployment Insurance Fund (UIF) still remains.

What has changed?

The recent High Court judgment in Van Wyk and Others v Minister of Employment and Labour changed all of this. In summary, during Mrs van Wyk’s pregnancy, Mr van Wyk applied to his employer for the four-month maternity leave benefit. His employer refused his request on the basis that its maternity leave policy did not provide for persons other than the birthing mother to receive the maternity leave benefit. The reason that Mr van Wyk applied for the maternity leave benefit was that Mrs van Wyk was attending to the management of her two businesses and as a result, she was not able to take leave for a four-month period to provide necessary nurturing for a newborn baby without unpredictable and potentially serious consequences for her business.

Given the fact that Mr van Wyk’s employer refused his request, Mr van Wyk negotiated an unpaid sabbatical period. Accordingly, he was not able to claim maternity benefits from the UIF. The Van Wyk’s approached the Gauteng High Court for appropriate relief. The couple challenged the constitutionality of section 25 and 26 of the BCEA, as they alleged that these sections are unconstitutional, as it unfairly discriminates against fathers of newborn babies. They furthermore argued that these two sections ought to be extended to ensure that all parents, regardless of sex, can extend their leave days should it be required to do so to take care of a child.

Lastly, the couple questioned if the Minister of Employment and Labour is compelled to amend the existing legislation to accommodate situations whereby fathers are the primary caregivers, as opposed to mothers.

The court found the provisions of section 25, and section 25A to C of the BCEA (and the corresponding provisions of the UIF Act) to be invalid by reason of inconsistency with sections 9 and 10 of the Constitution as they unfairly discriminate between mothers and fathers, and one set of parents and another, on the basis of whether their children were born of the mother or were conceived by surrogacy or were adopted.

What is the effect of the judgement?

This declaration of invalidity has no force and effect unless and until it is confirmed by the Constitutional Court. The High Court suspended the declaration of invalidity for two years to allow Parliament to cure the defects. Any declaration of invalidity made by a High Court must be referred to the Constitutional Court for confirmation. Therefore, the successful parties in the High Court will need to apply to the Constitutional Court for its confirmation. Until then, the judgment is only binding on the parties to that specific dispute.  The Minster is entitled to appeal this judgment and, in this regard, may request that the order of invalidity be suspended pending the finalisation of the appeal. Should the Minister appeal, the High Court judgment will be suspended pending the appeal and the existing provisions of the BCEA will continue to apply until the appeal is finalised.

We hope to see a more equal distribution of parental benefits in due course, thereby taking cognisance of more modern relationship dynamics, wherein both parents share a commitment to the nurturing of a child; however, it cannot be said with any certainty what the final result will be. We anticipate that the Constitutional Court will confirm the High Court’s decision in due course. Should this be the case, Parliament will have to amend the BCEA to give effect to the declaration.

Once the Constitutional Court confirms the declaration the law applies as per the High Court judgment. Accordingly, employers are therefore encouraged to give thought to how the proposed changes may impact their working environment and to start planning accordingly.

Key takeaways

  1. We expect that all parents, regardless of gender or birthing status, are likely to have the right to share in the four months of parental leave.
  2. The Constitutional Court needs to confirm the finding of the High Court as well as the interim reading of the unconstitutional sections, while Parliament needs to work to amend the law.
  3. The amendment will not allow both parents to take four months of consecutive leave – the parents will have the right to decide who will take the four months’ parental leave, or how it will be shared between them.
  4. Both parents will qualify for UIF payments in respect of the period of leave taken by each.
  5. The judgment recognises the fact that both parents may play an integral part in the nurturing of young children and recognises the changing needs of a society where it may not necessarily be the male partner who is the main breadwinner, and nor may it necessarily be the female who is the primary caregiver.
  6. Finally, until we hear from the Constitutional Court, there is no obligation on employers to amend their parental leave policies, but it may be prudent to anticipate the changes. To begin, employers may want to consider reviewing their maternity and parental leave policies to allow parents to share the parental leave.

by Ulrich Stander & Ross Simon

Download the Article .pdf

This information is published for general information purposes and is not intended to constitute legal advice and should not be construed as such. Specialist legal advice should always be sought in relation to any particular situation. Maserumule will accept no responsibility for any actions taken or not taken on the basis of this publication. Consent must be obtained from Maserumule before the information provided herein is reproduced in any way. No person shall have any claim of any nature whatsoever arising out of, or in connection with, the information provided herein against Maserumule and/or any of its personnel.

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