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Global employment briefing: South Africa, February 2017

  • United Kingdom
  • Employment law


New parental leave proposal

It does not come as a surprise that our legislature seeks to insert a section into the Basic Conditions of Employment Act, 75 of 1997 (“the BCEA”) to cater for “Parental leave”. This was predicted by many after the Labour Court’s decision in the case of MIA v State Information Technology in May 2015. In this case, the court held that there is no reason why gay men who become parents through surrogacy should not be entitled to maternity leave for the same amount of time as birth mothers.

As the maternity leave section in the BCEA currently stands, a birth mother may take four consecutive months’ maternity leave in respect of her child’s birth whereas the BCEA only affords a father three days’ leave when his child is born. This leave is termed “Family responsibility leave”.

The Labour Laws Amendment Bill (“the Bill”) aims to cater for the need to develop our law on the premise that it is also necessary for fathers to bond with their children, including their new-borns. It has been argued that this will benefit society as a whole by contributing towards stronger and healthier families.

While the Bill does not provide fathers with the same amount of leave as it affords to birth mothers, it is certainly a step in the right direction. We say so because internationally, many jurisdictions have already recognised the benefit in affording fathers more leave and have catered for this in their legislation. Essentially the Bill entitles a parent, who is not entitled to maternity leave, to ten consecutive days’ parental leave when his (or her) child is born. It is interesting to note that the proposed “Parental leave” provision is gender neutrally phrased which suggests that it would cater for all kinds of non-traditional modern day family scenarios. For example, where a same-sex female couple have a child one would apply for, and be granted, maternity leave and the other would apply for, and be granted, parental leave.

The Bill also provides that persons who are adoptive parents of a child younger than two years, and persons who are the commissioning parents in a surrogate motherhood agreement, are entitled to ten weeks’ consecutive Adoption leave or Commissioning parental leave respectively. This development will, no doubt, also be favourably received by non-traditional family starters.

The Bill still requires the approval by the National Assembly, the National Council of Provinces and, finally, the President’s signature before it will become law. That said, it is advisable for employers to monitor the progress of the Bill because, if the Bill becomes law, employers will need to comply with same. This would entail inter alia amending current employment contracts and/or company policies.

Prescription of Arbitration Awards issued by Employment Dispute Resolution Tribunals

In other employment law news, in January 2017 the Constitutional Court (“CC”), in the recent case of Myathaza v Johannesburg Metropolitan Bus Services (SOC) Limited t/a Metrobus, decided an important decision impacting the enforceability of arbitration awards handed down before 2015 by South Africa’s employment resolution fora, such as the CCMA. Prior to this judgment, such arbitration awards were, in certain circumstances, deemed to have prescribed three years after the arbitration award was handed down. This meant that where such awards were not enforced within three years because, for example, an arbitration award was subsequently reviewed in a higher court, where the subsequent litigation was protracted over three years, the employee’s claim would prescribe and he/she would be unable to enforce the arbitration award.

The CC has now remedied this unjust state of affairs. The CC held that awards handed down prior to the amendments to the Labour Relations Act (“the LRA”) in 2015 do not prescribe in terms of the Prescription Act in instances where a party has lodged an application to review that award. Awards handed down after 2015 are suitably dealt with differently in terms of other legislative safeguards.

The CC judgment brings the position in line with that applicable to arbitration awards issued after the amendments in that a review application to set aside the arbitration award interrupts the running of prescription.