Guest Article: Paternity Success in the High Court and Legislative Change

Sections 1 to 7 of the Labour Laws Amendment Act of 2018 (“the Act”) became effective on the 1st of January 2020, which amended certain sections of the Basic Conditions of Employment Act. These sections supplement section 25 of the BCEA which deals with maternity leave, parental leave, leave for the adoption of a child and surrogacy leave.

In 2022, the constitutionality of these sections of the BCEA came under scrutiny in Werner Van Wyk & 3 others v the Minister of Employment and Labour (2022-017842) [2023] ZAGPJHC 1213, where the applicants sought for the above-mentioned section to be declared invalid and unconstitutional.

On the 25th of October 2023 the Johannesburg High Court handed down it’s judgement in favor of the applicants, and found that section 25, 25A and 25C of the BCEA, and the corresponding provisions of the Unemployment Insurance Fund Act, are invalid as they are inconsistent with sections 9 and 10 of the Constitution, to the extent that these provisions:

  1. Unfairly discriminate between mothers and fathers;
  2. Unfairly discriminate between one set of parents and another based on whether their children-
    1. Were born of the mother; and
    2. Were conceived by surrogacy; or
    3. Were adopted.

The Court continued to provide a further substitution of section 25(1) of the BCEA, which allowed for an employee to be entitled to 4 months’ consecutive maternity leave, and has been replaced with the following in the interim;

“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 parental leave, which, in the case of a pair of parents, be taken in accordance with their election, as follows:

  1. one or other parent shall take the whole of the period; or
  2. each parent shall take turns at taking leave;

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.”

Under these new amendments, both parents are now collectively entitled to 4 months’ paternity/maternity leave, which they can elect to share together. This seems to be good news of you are a father and are now entitled to paternity leave, but the practicality of the substitution must be considered. Employers will now most likely need to have their employees fill out declarations regarding their relationship status with the other parent, if there is even one, and have them declare how these parents intend on taking this shared parental leave. It becomes an even bigger headache for the employers of the parents, who now have to have to contact the employer of the other spouse to ensure that no leave- fraud is committed.

It is important to note that these amendments to section 25 of the BCEA are only interim amendments/ provisions, as the declaration of invalidity as handed down by the High Court is still subjected to scrutiny by the Constitutional Court, which needs to still accept or reject the ruling.

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