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Oct 30, 2023



Dear employer

On 25 October 2023, the Johannesburg High Court handed down a judgement in favour of the applicants, who sought for the sections of the Basic Conditions of Employment Act (BCEA), which regulate maternity-, parental-, adoption- and surrogacy leave, to be declared invalid and unconstitutional.

The Court found that:

“…the provisions of sections 25, 25A, 25B and 25C of the BCEA, and the corresponding provisions of the Unemployment Insurance Fund Act (UIF Act), sections 24, 26A, 27, 29A, are invalid by reason of inconsistency with sections 9 and 10 of the Constitution, to the extent that the provisions:

a. unfairly discriminate between mothers and fathers;
b. unfairly discriminate between one set of parents and another on the basis of whether their children-

i. were born of the mother;
ii. were conceived by surrogacy; or
iii. were adopted.”

The Court went further and provided a substitution of section 25(1), pending remedial legislation being enacted. Section 25(1), which allowed for an employee’s entitlement to 4 months’ consecutive maternity leave, 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 the 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.”
Although the learned Judge attempted to ‘take a moral high ground’ in the name of equality and ensure that all types of parents in varying relationships are allowed ‘sufficient bonding time’ with a child through leave, the practical implications of this judgement are quite disastrous. In addition, this judgement has left the physical realities of actual childbirth to take a backseat in the name of ‘equality’.

Firstly, the administrative burden placed upon employers by this judgement, is both undue and impractical. With the substituted wording of section 25, employers will now have to request declarations from employees regarding their relationship status with the other parent, should there be one, where the other parent is employed, and how these parents plan on allocating the collective 4 months’ “parental” leave. If each parent is employed at a different employer, the respective employers will have to communicate with each other in order to ensure that no leave-fraud is committed. This is a ridiculous arrangement and will cause administrative chaos.

Secondly, no economic or financial impact study has been performed to calculate the impact of the amendment of the sections in the UIF Act on the taxpayer and the state fiscus. Nonetheless, the judgement amends the relevant sections of the UIF to ensure that all parents who contribute and now qualify for the 4 months’ parental leave, can claim. This, despite the already horrifying circumstances of ineptitude and complete lack of service reigning at the UIF.

What is even more cumbersome, is that the Judge even hinted towards the Government reducing the benefits offered by the UIF to stay within budget, in order to achieve ‘equal treatment’ of all the new claimants. A pregnant woman, physically, cannot work at a given stage of childbearing, whilst other parents still can. It is grossly unfair to reduce the benefits awarded to the pregnant woman who may have no choice in whether she can continue working.

The other option suggested by the Judge, was to increase the financial obligations of employers by increasing the mandated UIF levies.

Thirdly, as NEASA submitted to the Court in this matter, women, and more so pregnant women, will be at a great loss due to this judgement and the amendment of maternity leave. Here’s why:

1. Employers are not legislatively obligated to pay any benefits and/or remuneration to any employee opting for parental leave. However, those employers who, out of good will, provided some financial benefit in addition to the (mostly never received) UIF payouts, have indicated in a survey performed by NEASA, that they will amend their policies and scrap the benefits if all employees who, in any form have a child, may elect to take the parental leave.

2. Whether the pregnant mother needs or wants to utilise her 4 months’ parental leave, the other parent, whether that be a supporting spouse or merely the biological impregnator, can now demand their share of the leave based on the fact that they are, so to speak, ‘the other parent’. Although the Judge attempted to circumvent this situation by using the words “single parent” and “pair of parents”, these concepts are not defined and are therefore susceptible to abuse.

3. The situation where the pregnant mother is unemployed, is not dealt with favourably by this judgement. The father/other parent of the child will be eligible for the full 4 months’ parental leave, which can negatively impact productivity. If a wily man, as the Court dubbed them, ‘plays his cards right’, he can ride out on UIF benefits, nearly never having to work – this situation will cripple the workforce of an employer and raise their operational costs by having to find replacements and stand-ins.

It is clear from the above, that women, and more so childbearing women, have received a blow as a protected group from this judgement.

The interim provisions, however, are not set in stone. The declaration of invalidity of the relevant sections of the BCEA and UIF Act, are still to be confirmed or rejected by the Constitutional Court.

NEASA will keep employers abreast of the developments in this matter.

For more information:
NEASA Media Department 


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