This notice exclusively deals with the question as to how maternity leave (s25), parental leave (s25A), adoption leave (s25B) and commissioning parental leave (s 25C) of the BCEA should be dealt with after the high court recently determined that these amendments did not pass constitutional muster. We look forward to you being part of this continuing learning event – to secure Your seat, register here.
- In considering the constitutionality of the sections of the Basic Conditions of Employment Act 75 of 1997 dealing with maternity leave (s25), parental leave (s25A), adoption leave (s25B) and commissioning parental leave (s25C), the first issue to be considered is the test to be applied dealing with the alleged unequal treatment between mothers and fathers and between a birth mother and other mothers or parents. What is the test recently applied by the high court in this regard, with reference to Harksen v Lane NO and Others 1998 (1) SA 300 (CC)?
- Before the judgment of the high court, s25(1) of the BCEA read as follows: ‘An employee is entitled to at least four consecutive months’ maternity leave.’ How did the high court recently determine that s25(1) should read, taking into account a single parent’s, or, alternatively, a pair of parents’, entitlement to at least four months’ consecutive parental leave and what are the administrative functions identified by the high court to be undertaken by parents in the above regard?
- Before the recent judgment of the high court dealing with the constitutionality of s25A(1), such section read as follows: ‘An employee, who is a parent of a child, is entitled to at least 10 consecutive days’ parental leave.’ How did the high court recently determine that this section should read, with reference to ‘parental leave’ identified in the newly- introduced s25(1) of the BCEA?
- How did the high court recently, when dealing with the constitutionality of s25A(2) of the BCEA (parental leave), link the employee’s entitlement to commence parental leave on the day that the child is born with the newly-introduced provisions of s25(2) of the BCEA?
- On what basis did the high court recently, when dealing with adoption leave (s25B of the BCEA), determine an employee’s entitlement to such leave, in line with the newly- introduced s25(1) of the BCEA?
- Prior to the high court judgment considering the constitutionality of s25B(6) of the BCEA, dealing with adoption leave, such section indicated that, if an adoption order is made in respect of two adoptive parents, one of the adoptive parents was entitled to adoption leave and the other adoptive parent could apply for parental leave. Subsequent to such judgment, what are the rights of two adoptive parents to leave in terms of s25(1) of the BCEA?
- Before the recent judgment of the high court dealing with the constitutionality of s25C(1) of the BCEA (commissioning parental leave), an employee who is a commissioning parent in a surrogate motherhood agreement, was entitled to commissioning parental leave of at least 10 weeks consecutively or parental leave in terms of s25A. Subsequent to such judgment, what leave is a commissioning parent in a surrogate motherhood agreement entitled to?
- Prior to the recent high court judgment dealing with the constitutionality of s25C(6) of the BCEA, if there were two commissioning parents, one of such parents could apply for commissioning parental leave and the other could apply for parental leave. Subsequent to such judgment, what is the entitlement of two commissioning parents to parental leave?
- Before the high court considered the constitutionality of s24 (right to maternity benefits), s26A (right to parental benefits), s27 (right to adoption benefits) and s29A (right to commissioning parental benefits) of the Unemployment Insurance Act 63 of 2001, the entitlement to these benefits was to be determined by the minister, in each case respectively, subject to the provisions of the such Act. Taking into account the recent viewpoint adopted by the high court, how is the entitlement of each parent now to be calculated?
