contact@faurefaure.co.za
Telephone: 021 871 1200

Paternity leave: Men now entitled to maternity leave

I remember the day that I left the hospital with my son – 19 June 2017. Possibly one of the worst days of my life, with his birth being one of the very best. The story of parenthood: the highest highs and the lowest lows. I wished that I could pack one of the nurses into my, suddenly too big, nappy bag. I remember coming home and finding my perfect nursery totally impractical and being overwhelmed by all kinds of new emotions: love, confusion, tiredness.  My husband however was (still is) a rock-star. From day one he was hands-on and helped with everything: from changing nappies, bathing our son and allowing him to fall asleep on his father’s chest.

My husband forms part of a new-generation of fathers. Fathers that our parents cannot believe exist. Fathers that are proud to be involved and no longer leave raising children to mothers, but who walk firmly beside them. A generation of fathers that our President has now acknowledged.

Maternity leave policy in South Africa

On Friday, 23 November 2018 President Ramaphosa signed the Labour Laws Amendment Act, Act 10 of 2018 (“the Act”) and the Act was published in the Government Gazette on the 27th of November 2018.

Maternity leave for mothers is usually a 4 (four) month period of unpaid leave. You remain employed for this period and your position must be reserved for you.  A mother can also claim a part of her salary from the Unemployment Insurance Fund. Some employers do however pay their employees partially or in full during maternity leave.

A father who wanted to stay with his new-born and the mother had to take family responsibility leave, which was limited to 3 (three) days per annual cycle (paid leave) or use their annual leave days for this privilege. Family responsibility leave is only available after being employed for 4 (four) months or longer.

The medical journals are flooded with articles on how important a father’s role is in early childhood development and the biggest gift you can give a new mother is a little bit of help. It is therefore important for fathers to know how the Act now affects them.

Maternity Leave: Paternal, Surrogacy and Adopting Parents

The Act amended the Basic Conditions of Employment Act of 1997 (BCEA) to provide for parental, adoption and commissioning (surrogacy) parental leave to employees. The Act also amended the Unemployment Insurance Act of 2001 (UIA) to provide for the right to claim paternal and commissioning parental benefits from the Unemployment Insurance Fund (UIF).

Men now entitled to 10 days paternal leave

Section 25A of the BCEA, as amended, now provides that an employee who is a parent of a child, is entitled to at least 10 (ten) consecutive days paternal leave. The employee may commence the paternal leave on the day that the employee’s child is born.

The employee must notify his employer in writing, unless the employee is unable to do so, of the date on which the employee intends to commence his paternal leave and when he will be returning to work thereafter. This notification must be given at least 1 (one) month before the employee’s child is expected to be born. If it is not reasonably practical to do so, then as soon as it is reasonably practical.

Paternity leave: pay

Section 12 of the Unemployment Insurance Act of 2001 (UIA) was also amended to provide that parental benefits must be paid at a rate of 66% of the earnings of the beneficiary at the date of the application, subject to the maximum income threshold. Section 26A(5) of the Unemployment Insurance Act of 2001 was further inserted to provide that a contributor (father/mother) is not entitled to benefits unless he or she was in employment, whether as a contributor or not, for at least 13 (thirteen) weeks before the date of application for parental benefits. Section 26B of the Unemployment Insurance Act of 2001 now also provides that an application for parental benefits must be made in the prescribed form at an employment office and within 12 (twelve) months after the date of the childbirth.

Still-born babies and other amendments that the Act secured

A mother who loses her child in the third trimester or whose baby is a still-born, remains eligible for maternity leave of 4 (four) months and she can claim from the UIF for 6 (six) weeks. The Act also made significant changes for adoptive parents and commissioning parents (surrogacy) that will be explained in a separate article.

How does South Africa compare with other Countries?

Canada:         

Fathers may take up to 5 (five) weeks of paternity leave with a reduced salary of 70%, paid by Social Security. Alternatively, either parent may take 32 weeks, with a sliding scale of a reduced salary.

Japan:          

Fathers may take up to 1 (one) year of unpaid paternity leave or share 26 (twenty six) weeks of maternity leave with the mother.

Sweden:       

Fathers may take up to 18 (eighteen) weeks, with 80% of their salaries being paid.

India:       

Fathers in India are the most progressive and receives up to 3 (three) weeks, fully paid, for their fist and second children.

 

Article by Marelize Meintjes

Marelize Meintjes | Director | Faure & Faure Inc Lloyd Fortuin Attorneys, Paarl, Cape Town. Family Law, Property Law + Commercial Law, Family Mediator

Marelize Meintjes is a Director at Faure & Faure Inc. Attorneys and a Family Law Specialist. For more information contact Marelize Meintjes on 021 871 1200 or email contact@faurefaure.co.za.

 

Sources:
• Basic Conditions of Employment Act of 1997 (BCEA);
• Unemployment Insurance Act of 2001
• Comments adapted from article published online by Sophia Swanepoel: www.parent24.com

Leave a Reply