Authors: Darryn Mer – Consultant
The constitutionality of section 25 of the Basic Conditions of Employment Act (BCEA) dealing with parental, adoption and commissioning parental leave has been challenged in the High Court.
In the matter of Van Wijk & 3 Others vs Minister of Employment & Labour, the applicants sought to contend that sections of the BCEA were unconstitutional.
In terms of the BCEA, section 25 allows four months of unpaid maternity leave for mothers of a newborn child. An employee may commence maternity leave at any stage, from four weeks prior to the date of birth or at any other time, as provided for by a medical practitioner.
Section 25(a) of the BCEA provides that an employee is entitled to 10 days of parental leave after the birth of the employee’s child, and this is also applicable when the employee adopts a child. Section 25(b) only allows 10 consecutive weeks of adoption leave for one adoptive parent, and 10 consecutive days of parental leave for the other one in terms of section 25(a).
Section 25(c) of the BECA allows for one of the commissioning parents in a surrogate situation to take 10 consecutive weeks’ leave, the other 10 days of commissioning parental leave in terms of section 25(a).
It is evident, therefore, that only a pregnant female can qualify for maternity leave in terms of section 25 of the BCEA.
The applicants also challenged sections 24, 26(a), 27 and 29(a) of the Unemployment Insurance Fund Act (UIF Act).
The applicants contended that these sections of the BCEA and the UIF Act contravened sections 9 and 10 of the Constitution of the Republic of South Africa, since they unfairly discriminate between mothers and fathers, as well as between one set of parents and the other, depending upon whether the children were born of the mother, conceived of surrogacy, or were adopted.
The Honourable Justice Rowland Sutherland, who heard the matter, declared that these provisions of the BCEA and the UIF Act did in fact contravene sections 9 and 10 of the Constitution.
The legislature has been afforded two years to effect amendments to the legislation to cure the defects and the unconstitutionality of the provisions of the BCEA and the UIF Act.
At the heart of the judgment was the fact that the court concluded that it is not for the legislature to decide and declare the parental approach that mothers and fathers may wish to adopt in relation to the newborn child.
The court stated that
“...A father who chooses to share this experience for his own well-being, no less than that of his children and of their mother, can indeed complain that the absence of equal recognition in the BCEA is unfair discrimination. A mother can on the same premise rightly complain that to assign her the role as the primary caregiver who should bear the rigours of parenthood single-handed, is a choice that she and the father should make, not the legislature....”
As the legislature has been given two years to amend the legislation, the order granted as interim relief stated that
“All parents of whatever stripe enjoy four consecutive months’ parental leave, collectively. In other words, each pair of parents of the qualifying child shall share the four months’ leave as they elect.”
The judgment has been accepted as being extremely positive in that it fosters a more inclusive and equal society for parents and that women are not unfairly burdened with looking after the newborn child.
From a practical perspective, the judgment needs to be carefully considered by employers, as they are now expected to provide parental leave to all employees, irrespective of their gender. Employers may need to reconsider their policies and practices, especially where employers provide paid maternity leave. Employers will most likely need to assess their operational requirements where employees may be absent for a length of time.
It will also mean that there will be a greater number of UIF claims in the future.
In summary, I think the judgment is a positive one and will in future promote equality in respect of both male and females when it comes to raising a newborn baby.
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