On 25 November 2015, a draft bill was published in the government gazette which proposes to amend the Basic Conditions of Employment Act, 1997 ("BCEA") and the Unemployment Insurance Act, 2001.  The draft amendment bill seeks to afford employees who are parents (regardless of sex), parental, adoption and surrogacy leave as well as UIF benefits.   Interested parties have until 25 December 2015 to submit written representations in response to the draft amendment bill.

In its current form, the BCEA does not make provision for male employees to take paternity leave. Male employees are however entitled to 3 days family responsibility leave following the birth of their child. On the other hand, female employees are, in terms of the BCEA, entitled to 4 months unpaid maternity leave.  

The draft amendment bill comes on the heels of a Durban Labour Court judgment in the case of M I A v State Information Technology Agency (Pty) Ltd [2015] JOL 33060 (LC) which indicated that it was time for the legislature to consider revising the limited scope of the BCEA and its maternity leave provisions.  For an analysis of the Labour Court's judgment, click on the following link http://www.wylie.co.za/Newsletter/758

The draft amendment bill proposes the following changes in so far as employees are concerned:

  1. 10 consecutive days parental leave when a child is born or adopted.
  2. The right to claim payment of parental benefits.
  3. 10 consecutive weeks adoption leave if the child adopted is below the age of two.
  4. If there are 2 adoptive parents, one of the parents may apply for parental leave and the other adoption leave.
  5. The right to claim payment of adoption benefits.
  6. 10 weeks "commissioning parental leave" for employees in a surrogate motherhood agreement.
  7. If there are 2 commissioning parents, one of the parents may apply for parental leave and the other parent may apply for commissioning parental leave.