By Lehlohonolo Lehana.
The Constitutional Court has unanimously ruled that parental leave of 4 months and 10 days can be shared between parents, regardless of gender, sex, colour or circumstances.
The court found that previous provisions in the Basic Conditions of Employment Act (BCEA) distinguishing between maternity and paternity leave constituted unfair and unconstitutional discrimination.
Parents may now share this leave amongst themselves as they see fit.
This comes after sections of the BCEA and the Unemployment Insurance Fund Act were declared unconstitutional because, when it comes to “maternity leave”, they unfairly discriminate against mothers and fathers, surrogate parents, and those who adopt children.
Johannesburg High Court Judge Roland Sutherland suspended the declaration of invalidity for two years to give Parliament time to “cure the defects”.
However Judge Sutherland ruled that all parents are entitled to four months’ “parental leave” and, if they contribute, to UIF benefits.
The matter was brought to court by a Polokwane couple, Werner and Ika van Wyk, Sonke Gender Justice, and the Commission for Gender Equality, with several other organisations acting as amicus curiae.
The sole respondent was the Minister of Labour, the custodian of the BCEA.
The contested sections are in Chapter 3 of the BCEA, which regulates the minimum leave that an employer must grant to employees who become parents. It provides for a total of four consecutive months of maternity leave for a birth mother and 10 days’ paternity leave for a father from the date the child is born.
It also provides for “gender neutral” leave for parents who adopt children. One of the parents is entitled to 10 consecutive weeks’ leave and the other parent to 10 days’ leave, with the election left up to the individuals.
With regards to children born via surrogacy, the Act guarantees leave for the genetically linked parent. However, it says nothing about the surrogate.
The Act does not require an employer to pay any remuneration, but parents can claim from the UIF if they contribute.
The Constitutional Court confirmed the High Court order, declaring that sections of the BCEA and UIF Act were invalid and inconsistent with the Constitution.
The declarations are suspended for a period of 36 months to afford Parliament the opportunity to remedy the constitutional defects.
However, pending the remedies, the court said that provisions of the BCEA are now amended to read that the current allowance of four months should be retained.
Instead of applying only to biological mothers, parental leave should not be restricted, but applicable to fathers as well.
The additional 10 days contemplated in the laws should also be retained, giving a total of four months and 10 days leave to be shared among the parents.
Where only one of the parents is employed, that parent should be entitled to the full parental leave.
In the case of biological birth, the mother must have preference in respect of the time currently allocated as preparation for and recovery from birth.
Subject to this qualification, the parents should be entitled to share the available days as they choose, the court said.
In the case of a disagreement, the leave should be apportioned as close as possible to an even split of the days.
Regarding the corresponding UIF provisions, the court said that it would be inappropriate to provide an interim reading in, because it does not have sufficient information on how UIF benefits are calculated, and a reading-in could have significant financial implications.
The ConCourt gave the government until six months before the 36-month period is up to report back on whether the laws have been corrected.