Big changes for parental leave on the cards

Business Tech reports that a new case against the Minister of Employment and Labour looks to create a new gender-neutral maternity leave. In August 2023, the Gauteng High Court heard arguments in the case Van Wyk and Others v the Minister of Employment and Labour and Others. In this matter, Werner and Ika Van Wyk’s application looks at the gender-neutral interpretation of the term “employee” as seen in the Basic Conditions of Employment (BCEA) regarding maternity leave as to apply to both parents regardless of who gave birth.

“This reading would extend the right to four months maternity leave beyond an employee who gives birth to a child,” Gilliam Lumb and Alex van Greuning from Cliffe Dekker Hofmyer said. If the court does not rule in their favour, the Van Wyks have asked that the maternity leave provisions in the BCEA be declared unconstitutional and invalid as they exclude parents who have not given birth. The court has not given its judgement over the case yet, but given the constitutional nature of the challenge, the Constitutional Court will likely have to get involved.

“While the case elicits diverse views as to its merits, its constitutional significance and importance within the workplace in South Africa cannot be overlooked,” the experts said. The case may increase the number of employees who are allowed to take four months of maternity leave to care for a newborn child if any relief is granted by the court. However, the experts warned that the new system could have a dire effect on business operations in South Africa. “This may have an operational impact on employers from a planning and capacity perspective as well as cost implications, particularly if the employer pays its employees while they are on maternity leave,” they said.  

Ref: Business Tech

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