You may have heard recently the Constitutional Court having ruled certain provisions in the Basic Conditions of Employment Act pertaining to maternity leave as unconstitutional. In this special edition we briefly breakdown the changes to the BCEA provisions in terms of section 25 – Maternity Leave, now known as Parental Leave. 
 
In the matter Van Wyk & Others vs Minister of Employment and Labour & Others the Constitutional Court affirmed and ruled as follows:

• That the term Maternity Leave be replaced with the term Parental Leave as set out in section 25 of the BCEA
• Parental leave is defined as: An employee who is- (a) a single parent; or (b) the only employed party in a parental relationship, is entitled to at least four consecutive months’ parental leave.
• If both parties to a parental relationship are employed, the parties are entitled in the aggregate to four months and ten days’ parental leave, inclusive of any parental leave taken in terms of subsections (2) and (3). The 10 days stem from the paternity leave entitlement, however it is clear that both parents employed are only entitled to the aggregate of 4 months and 10 days parental leave.  It is also important to note that from the parental leave available that any parental leave taken prior the birth or adoption is to be included in the aggregate, for example female employees may commence such parental leave 4 weeks before the expected birth, these four weeks are inclusive of the aggregate of 4 weeks and 10 days leave. A party shall be deemed to be a party to a parental relationship if such a party has assumed parental rights and responsibilities over the child as contemplated in the Children’s Act, 2005
• The remainder of the parental leave referred to in subsection, after deducting any parental leave taken in terms of subsections (2) and (3), may be taken by the parties in such manner as they may agree, including concurrently or consecutively, or partly concurrently and partly consecutively, save that any such parental leave, inclusive of the leave contemplated in subsections (2) and (3) must be taken by the party concerned in a single sequence of consecutive days.
• If the parties cannot agree on the manner in which the remainder of the parental leave referred to is to be taken, such remainder shall be apportioned between the parents in such a way that each parent’s total parental leave is as close as possible to half of four months and ten days, provided that such leave is completed within a period of four months from the birth of the child or, when the adoption order is granted / where the child is placed in the care of a prospective adoptive parent, or on the date the child is born on account of a surrogate motherhood agreement.
• Please note that the term Adoption Leave is also referred to whereby the same rights and entitlements as set out above applies to adoptive / prospective adoptive parents. Therefore, both parties are entitled in the aggregate to four months and ten days’ adoption leave, similarly the leave must be taken as set out above.  

Few important notes are that the above leave is still deemed as unpaid, unless you have a term of contract, BC Main Agreement that manages maternity benefits or policy that regulates payment of such.  Employees may claim through UIF for such benefits.   

It is our view that existing maternity leave provisions in your policies / contracts and so on, be amended to reflect as Parental Leave and to set out the terms as mentioned above, this would include to review your policy terms when it comes to whether you pay additional benefits to employees who are on maternity leave.

As always, we are here to help, give us a call should you require assistance.