NOVEMBER 1, 2023
In a recent ground-breaking ruling,[1] the High Court made an order declaring provisions of the Basic Conditions of Employment Act 75 of 1995 (“BCEA”) relating to maternity leave, parental leave, adoption leave and commissioning parental leave, as well as the corresponding provisions in the Unemployment Insurance Fund Act 63 of 2007 (“UIF Act”), as unconstitutional.
The order serves as a progressive step to ensuring that different categories of parents are entitled to the same parental leave benefits and that a gender equal approach to parental leave is adopted.
A progressive step towards parental leave: High Court declares various provisions of legislation regulating parental leave as unconstitutional
The judgment indeed has far-reaching implications when it pertains to the entitlement of both maternity and paternity leave allocation under the BCEA and as read with the UIF Act. It accordingly broadens the scope of maternity leave, traditionally allocated for pregnant mothers, to other categories of parents, regardless of their gender, who otherwise require nurturing and providing care to their newborn.
Background
Mr and Mrs Van Wyk, as the First and Second Applicants (“Van Wyks”), brought an application to declare sections 25, 25A, 25B and 25C of the BCEA, as well as the corresponding provisions in the UIF Act unconstitutional and invalid to the extent that it unfairly discriminated against categories of parents namely; birth mother and father, adoptive parents and parents of a child born through surrogacy, in relation to the duration of leave entitlements.
The couple had decided that Mr Van Wyk would be the primary caregiver during the early stages of their child’s development so that Mrs Van Wyk could return to trade in their business.
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