On 28 October, the presidency signed a proclamation to the effect that as from 1 November 2019, the provisions of the long-awaited Labour Laws Amendment Act relating to parental benefits would come into effect. The Labour Laws Amendment Act amends the Basic Conditions of Employment Act and the Unemployment Insurance Act to include new rules surrounding parental leave lawpaternity, adoption and surrogacy leave. While these amendments cannot compare to parental benefits offered by other countries – such as Sweden, where each parent is eligible for up to 240 days paid parental leave – it is definitely an improvement. Baby steps, right?
Under the new regulation, new fathers can apply for a maximum of 10 days paternity leave from the day a child is born. In the case of adoption, leave for a period of 10 consecutive weeks can be taken when an adoption order is granted or when a child is placed in the care of a prospective adoptive parent by a competent court. A parent of a child who has been born as a result of a surrogate motherhood agreement is also entitled to 10 consecutive weeks leave.
In the case of adoption leave or surrogacy leave, if the adoption is in the name of both parents, or surrogacy agreement is in respect of both parents, one parent may apply for adoption/surrogacy leave and qualify for 10 weeks of paid leave while the other parent may only apply for parental leave and enjoy the benefits of 10 days of paid leave, payable by the Unemployment Insurance Fund at a rate of 66% of the contributor’s salary subject to a threshold as determined by the Minister from time to time.
Application for leave benefits must be made at the employment office within 12 months of the child being born or an adopted child being placed in the care of prospective parents or of the Court Order granting the adoption.
If an employee is not paid 100% of their salary during parental leave, employees can submit a claim with the Unemployment Insurance Fund (UIF). However, an employee is not entitled to payment exceeding the amount that the employee would have received had the employee not taken leave.
Qualifying UIF contributors can visit any Labour Centre in the country with the prescribed application form (available at labour.gov.za/parental-leave-forms) and the following support documents to submit for a Parental Benefit claim:
– Identity Document of the applicant
– Birth Certificate of the child with full details of parents and
– Details of a valid bank account.
As an employee or employer, it is important to understand the process:
– An employee must apply for parental leave from the employer, it is not automatically granted.
– If an employer does not pay 100% of their remuneration, the employee can submit a Parental Benefit claim with UIF.
– Only contributing and qualifying UIF beneficiaries can submit a claim.
– The application will be investigated by a claims officer.
– Payment is calculated on a flat rate of 66% of the contributable remuneration.
– A contributor is not entitled to benefits unless he or she was in employment for at least 13 weeks before the date of application for parental benefits.
It is as such advisable that companies amend their leave policies and employment agreements to comply with this new law. Employers should also take the time to educate their employees so that working dads can exercise these benefits.
Caution should, however, be taken in amending the terms of employment agreements with current employees in order to avoid a dispute arising from the unilateral amendment of terms of employment.
For any questions around the new parental leave laws or for assistance updating employment contracts, please contact us at rb@ryanbrittanattorneys.co.za.
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