Parental rights: Progress but some puzzles
Authors Alan Rycroft, Carren G Duffy
Affiliations: Professor of Commercial Law at the University of Cape Town; Lecturer in Management Studies at the University of Cape Town
Source: Industrial Law Journal, Volume 40 Issue 1, 2019, p. 12 – 25
The Labour Laws Amendment Bill, a Private Member’s Bill, has finally been passed by Parliament and assented to by the President after a wait of several years. The primary aim of the legislation is to provide that an employee, who is a parent of a child, is entitled to at least ten consecutive days’ parental leave. This is expressed in a gender-neutral way and is intended for the parent who is not the primary nurturer. Section 27 of the BCEA is amended so that family responsibility leave will no longer apply when a child is born. In this article four main questions are posed: (1) Do the provisions promote gender equality? (2) Are the provisions non-discriminatory? (3) Will the inclusion of paternity leave rights result in utilisation? and (4) Does the proposed legislation take in account the African context? Our analysis suggests that while the amendments aim to promote gender equality, there remain concerns that as they stand they are discriminatory. The provision of increased benefits for traditional and atypical family structures is a necessary change, albeit the distribution of leave benefits is unequal and cannot be shared. Additionally, while it is not uncommon for leave entitlements to be paid according to the UIF, the practical implications of this in a developing country will result in some families being disadvantaged. As for the utilisation of parental leave rights, we have noted that there are warnings from other countries that employers need to be supportive of parental leave in order to combat perceived disadvantages in taking such leave.