The document summarizes current paternity leave provisions in South Africa and where the country is headed with proposed reforms. Currently, South Africa provides 4 months of maternity leave but no statutory right to paternity leave. However, South Africa has international obligations to promote social justice and equality in childcare rights. Recent proposed reforms include the Labour Laws Amendment Bill, which would provide 10 days of parental leave and 10 weeks of adoption leave, bringing South African law more in line with international standards.

1. Presented by Neil Barrett
Paternity Leave – Where are we
headed?

2. Current Provisions
Basic Conditions of
Employment Act

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• Four consecutive months
– 4 weeks before expected date of birth / Medical Practitioner / Midwife
• 6 weeks after date of birth
• Payment of Benefits in terms of the UIF
• Alternatively policy
Maternity Leave - Current provisions

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• No express provisions for:
– Same-Sex Civil Unions
– Surrogacy Agreements
– Paternity Leave
Current provisions

5. Where do we stand?
International
Obligations

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• International Labour Organisation – SA Member State
– has obligations to adopt policies which further social justice and equality between men
and women with regard to childcare rights
• ILO Report (2014)
– statutory right to paternity leave in 78 of 167 countries
– leave is paid in the majority of these (70)
– trend for greater involvement of fathers around childbirth
• Convention on the Elimination of All Forms of Discrimination against
Women (CEDAW)
• United Nations Convention on the Rights of the Child (UNCRC)
• African Charter on the Rights and Welfare of the Child (ACRWC)
International obligations

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• 12 weeks Maternity Leave in
terms of FMLA
• Paternity Leave:
– Most States and some cities
– Less favourable
– Some provision for statutory payment
by the State
United States
• 12 months Maternity Leave
• Up to 39 weeks paid
• Shared Parental Leave
– Not required to be continuous and can
be simultaneous
United Kingdom
Leave provisions of other territories

8. 2015 Judgment
MIA v State Information
Technology Agency

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• Facts
• Section 6(1) Employment Equity Act
• Argument - undeniable physiological effect
• Court
– Best interests of the child
– Surrogacy agreement
• Effect?
MIA v State Information Technology Agency
Gush – Para 19
“It is clear that in order properly
to deal with matters such as
this it is necessary to amend the
legislation and in particular the
Basic Conditions of Employment
Act.”

10. Labour Laws Amendment
Bill
Where Are We
Headed?

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• Private Member Bill
• Parental Leave
– 10 consecutive days
• Adoption Leave
– 10 consecutive weeks
• Commissioning Parental Leave
– 10 consecutive weeks
• UIF
Labour Laws Amendment Bill

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