1. 2 November 2016: Desiree Swartz – Parliamentary Legal Adviser
Presentation to the PC on Labour Comments on the Public Submission and Amendment Proposals on the Labour Laws AB, 2015, (PMB5-2015]
2 November 2016:
Desiree Swartz – Parliamentary Legal Adviser

2. Overview
This presentation responds to the public submissions (oral and written) made on the Bill. It addresses the following:
comments where there was proposals for amendments to the various clauses in the Bill;
comments where there was proposals for additions to the Bill
proposals by the legal adviser for amendments to the Bill to streamline it to the Unemployment Insurance Amendment Bill [B25D-2015] (“Unemployment Insurance Bill”).
technical amendments

3. Comments on parental leave
Sonke Gender Justice
Legal adviser’s comments
Inadequate provision for the period of time for parental leave.
Request peri-natal leave at 100% salary – minimum of 10 working days before the and maximum of 10 working days after the birth of the child
Proposal for parental leave of 6 months at 75% salary for:
A mother that gives birth
An adoptive parent
A commissioning parent
Parental leave should commence 1 month prior to the birth of child in the case of pregnancy or within 3 years of a child’s placement in the case of an adoption or surrogacy
The Bill does not make provision for peri-natal leave.
Whether to grant peri-natal leave is policy decision for the committee to decide.
The policy position of the member when drafting the Bill was to prevent possible abuse of claims against the Unemployment Insurance Fund.

4. Comments on parental leave
Sonke Gender Justice
Legal adviser’s comments
She made a requirement that in order to claim from the Fund-
a biological father must be registered as the father of the child in terms of the Births and Deaths Registration Act.
the adoptive parent must be the adoptive parent in the adoption order.
the commissioning parent must be the parent in the surrogate motherhood agreement.
This is the reason why peri-natal leave was not a consideration in the drafting of the Bill

5. Comments on parental leave
Sonke Gender Justice
Legal adviser’s comments
The Bill does not amend the provisions that relate to maternity leave. The BCEA currently provides for 4 consecutive months.
The Bill provides for adoption leave and commissioning parental leave of 10 weeks.
The Unemployment Insurance Act already sets out the formula on the amount of money to be paid
Propose that parent be defined - unclear whether it refers to biological parents only or whether it includes caregivers, step-parents, legal guardians.
The Bill sets out who is entitled to parental leave, ie the father, the adoptive parent and the commissioning parent.

6. Comments on parental leave
Commission for Gender Equality
Legal adviser’s comments
Recommended the revision of new insertion 25A (1) and (2) to read as follows:
An employee, who is a parent of a child and not entitled to maternity leave or who any person who is unable to exercise their right to maternity leave, is entitled to compulsory parental responsibility leave of at least ten consecutive working days as follows: 
(a) The parental responsibility leave must commence on the date of the birth of the child; or
(b) On the date that adoption is granted.
This is an amendment Bill and it was drafted to make it fit within the current Acts.
This wording does not make it clear when you are unable to exercise your right to maternity leave.
The reference to “compulsory parental leave” seem to suggest that an employee will not have a choice on whether to take the leave or not.
Recommend that the current wording be kept.

7. Comments on parental leave
Commission for Gender Equality
Legal adviser’s comments
Recommends a new insertion to 25A by way of a new sub clause (6) to read as follows:
“(6) The employer may not deny or set off parental responsibility leave against any other leave benefits that are due to the employee.”
Similar insertions as the above are recommended for new insertions to the provisions that relate to adoption leave and commissioning parental leave.
The inclusion of such a provision is unnecessary as the BCEA does not make provision for the set-off of one leave against another.
Recommend that such and inclusion is unnecessary.

8. Comments on parental leave
Commission for Gender Equality
Legal adviser’s comments
Recommends the use of the term Parental Responsibility Leave as a general term to refer to the various categories of leave such as commissioning parental leave, paternal leave and adoptive parental leave.
This is an amendment Bill and it was drafted to make it fit within the current Acts.
The BCEA categorises various types of leave and the Unemployment Insurance Act have the corresponding provision that deals with the different payment of benefits for the different categories of leave.
It sets the requirements for the payment of corresponding benefits from the Unemployment Insurance Fund.
Providing for a general term to deal with the various provision would require a redraft of the bill that would repeal existing provisions in the BCEA and the Unemployment Insurance Act.
Recommend that the current terms be kept.

9. Comments on adoption leave
COSATU and Sonke Gender Justice
Legal adviser’s comments
Restriction on adoption leave only in respect of a child who is below the age of two to be unjustifiably limiting.
Currently the Unemployment Insurance Act, (sections 27 to 29) makes provision for the right to adoption benefits, the application for adoption benefits and the payment of adoption benefits from the Fund.
The rationale was to align this to the current provisions in the Unemployment Insurance Act, that makes it a requirement adoption leave benefits only paid out in relation to a child which is below the age of two.
This is a policy decision that the committee must decide on whether to extend the adoption benefits to a child over the age of two.
If the committee decides have it in relation to a child over the age of two, an amendment also have to be brought so section 27 of the Unemployment Insurance Act.

10. Comments on adoption leave
Sonke Gender Justice
Legal adviser’s comments
10 weeks of adoption leave provided by the Bill is insufficient
Propose 10 working days for one adoptive parent after the child is physically placed with the adoptive parents
6 consecutive months for the other adoptive parent within the first 3 years that the child that is to be adopted is physically placed with the adoptive parent.
The rationale for giving 10 weeks, as opposed to 4 months which is applicable to maternity leave, is that the adoptive parent does not need not recover from giving birth.
Section 25(4) of the BCEA provides that a person who miscarriage during the third trimester or who bears a stillborn child is entitled to six weeks maternity leave which commences after the miscarriage or stillbirth.
The period for adoption leave was therefore shortened to exclude the period that catered for the recovery after birth.
This is a policy decision that the committee must decide on whether to extend the adoption leave period to 4 months.
COSATU
Proposal for 10 weeks adoption leave be amended to reflect the same 4 to 6 months provisions of maternity leave. As adopted parents do not need to recover from having given birth, provision should be made for the adopted parents to sub-divide this 4 to 6 months adoption leave.

11. Comments on adoption leave
Sonke Gender Justice
Legal adviser’s comments
The wording of the clause should be amended so as to activate adoption leave from the moment when ‘legal permanent alternative placement pending finalisation of adoption order’ has been granted, rather than the granting of the adoption order itself
Placement order pending an adoption
In terms of section 156 of the Children’s Act, 2005 (Act No. 38 of 2005) a placement order may be issued by the children’s court if a child has no parent or caregiver or has a parent or caregiver but that person is unable or unsuitable to care for the child. Such a child will be placed in:
- foster care
- temporary safe care, pending an application for, and finalisation of, the adoption of the child;
- shared care where different caregivers or centres alternate in taking responsibility for the care of the child at different times or periods; or
- a child and youth care centre;

12. Comments on adoption leave
Sonke Gender Justice
Legal adviser’s comments
Section 244 provides that when an adoption order is rescinded the court may make an appropriate placement order in respect of the child concerned
The placement order is therefore a temporary order.
It is therefore recommended that the current provision be retained which provides that an employee is only entitled to take adoption leave and draw unemployment insurance once and adoption order is granted. 

13. Comments on commissioning parental leave
Sonke Gender Justice
Legal adviser’s comments
10 weeks of commissioning parental leave provided by the Bill is insufficient.
Propose 10 working days before and 10 working days after the birth of the child within 20 days from the date of the birth of the child for one parent
Other parent gets the parental leave of 6 months
The rationale for giving 10 weeks, as opposed to 4 months which is applicable to maternity leave, is that the commissioning parent does not need not recover from giving birth.
Section 25(4) of the BCEA provides that a person who miscarriage during the third trimester or who bears a stillborn child is entitled to six weeks maternity leave which commences after the miscarriage or stillbirth.
The period for adoption leave was therefore shortened to exclude the period that catered for the recovery after birth.
Mr Terblanche
One commissioning parent to get 3 months and the other to get 10 days commissioning parental leave

14. New leave proposal Mr Terblanche Legal adviser’s comments
Elderly care leave of 1 day
This is a policy decision that the committee must take a decision on whether to include.

15. Proposals for changes to streamline it with the Unemployment Insurance Amendment Bill [B25D-2015]
Clause 4 of the Unemployment Insurance Bill - Right to benefits
Clause 4(b) stipulated the following:
“(c) For the purpose of Part D, maternity benefits must be paid at a rate of 66% of the earning of the beneficiary at the date of the application, subject to the maximum income threshold set in terms of paragraph (a)”
The benefit as it is currently in the Labour Laws AB is that a benefit applicable to parental leave, adoption leave and commissioning parental will be paid out at the scale provided for in section 12(3)(b), ie. a maximum of 60% of remuneration for lower income contributors and a lower rate of remuneration for higher income contributors.
Suggestion
It is suggested that a similar provision be inserted to make this type of benefit applicable to parental leave, adoption leave and commissioning parental leave as all relate the caregiving of a child

16. Proposals for changes to streamline it with the Unemployment Insurance Amendment Bill [B25D-2015] – Cont.
Clause 5 of the Unemployment Insurance Bill – Calculation of benefits
Clause 5(b) stipulated the following:
“5(a) The days of benefits that a contributor is entitled to in terms of subsection (3) may not be reduced by the payments of maternity benefits in terms of Part D of this Chapter.
(b) The payment of maternity benefits may not affect the payment of unemployment benefits.”
Suggestion
It is suggested that a similar provision be inserted to make this type of benefit applicable to parental leave, adoption leave and commissioning parental leave as all relate the caregiving of a child

17. Proposals for changes to streamline it with the Unemployment Insurance Amendment Bill [B25D-2015] – Cont.
Clause 9 of the Unemployment Insurance Bill – Right to maternity benefits
Clause 9(b) stipulated the following:
“(6) A contributor is not entitled to benefits unless she was in employment, whether as a contributor or not, for less than 13 weeks before the date of application for maternity benefits.”
Suggestion
It is suggested that a similar provision be inserted to make this type of requirement to parental leave, adoption leave and commissioning parental leave as all relate the caregiving of a child

18. Proposals for changes to streamline it with the Unemployment Insurance Amendment Bill [B25D-2015] – Cont.
Clause 10 of the Unemployment Insurance Bill – Application for maternity benefits
Clause 10(a) stipulated the following:
“(1) An application for maternity benefits must be made in the prescribed form at an employment office [at least eight weeks before childbirth] at any time before or after childbirth: Provided that the application shall be made within a period of 12 months after the date of childbirth.”
In terms of the Unemployment Insurance Act (the current position), an application for adoption benefits must be made within six months after the date of the order for adoption, but the Commissioner may accept an application after the six-month period on good cause shown.
The benefit as it is currently in the Labour Laws AB is that an application for parental and commissioning parental benefits must be made within six months after the date of the order for adoption, but the Commissioner may accept an application after the six-month period on good cause shown.
Suggestion
It is suggested that a similar provision be inserted to make this type of requirement to parental leave, adoption leave and commissioning parental leave as all relate the caregiving of a child

19. Technical amendment
To correct the reference in clause 9(c) to correctly reflect the section number that it substitutes. It should substitute subsection (4) and not (3) as indicated in the Bill
To correct the reference in clause 9(b) to correctly reflect the section number that it is adding. It should add subsection (5) and not (4) as indicated in the Bill

20. Thank you