The South Gauteng High Court, in the case of Van Wyk and Others v Minister of Employment and Labour (2022-017842)  ZAGPJHC 1213 (25 October 2023) has ruled that some provisions of the Basic Conditions of Employment Act (BCEA) and the Unemployment Insurance Fund Act (UIF Act) are unconstitutional.
The two pieces of legislation were amended in 2019 after the ACDP Party submitted a private bill which proposed adding Parental Leave, Adoption Leave and Commissioning Leave to the BCEA and required that the UIF Act pay employees who applied for this leave. Adoption leave had been recognised by the UIF Act previously, but not by the BCEA.
As a result, most companies revisited their leave policies and it was a legal requirement to amend letters of appointment to reflect the new leave types. Inspectors from the Department of Employment and Labour are currently issuing compliance notices to companies who have not updated their policies and amended their letters of appointment.
The recent Judgement was brought to court by Mr and Mrs van Wyk, Sonke Gender Justice and the Commission for Gender Equality who argued that it was unconstitutional to distinguish one parent-employee from another and that both parents should be entitled to parental leave in equal measures. The Judgement concurs and reads:
provisions in the UIF Act, sections 24, 26A, 27, 29A, shall be read to be consistent with changes effected by this order and, accordingly, each parent who is a contributor, as defined in the UIF Act, shall be entitled to the benefits as prescribed therein.
At this stage this judgement still has to be tested by the Constitutional Court, so no action is required at present. The Judge has also indicated that the Legislature has two years to make the necessary changes to the legislation, if the Constitutional Court agrees with this judgement.
If there is agreement, then the following steps need to be taken:
The previous amendments to the BCEA and the UIF Act, which introduced parental and commissioning leave and changed the entitlement to adoption leave were first introduced by the ACDP Party on the 7th October 2015. They were signed into law in 2017, but only promulgated on 1 November 2019. This process must now be accomplished in two years by court order. It is probable that the Department of Employment and Labour would request an extension as they would need to ensure that any increase in leave entitlement can be afforded by the UIF.
Until the Acts are amended there is no requirement to change any of the policies, however, once the Constitutional Court has ruled, it may be time to dust off the relevant policies and review them.
Many companies are paying mothers the whole of their salary while they are on maternity leave or topping up the amount that they can receive from UIF. The implications if fathers are also entitled to take four months parental leave must be carefully considered, but until the Constitutional Court rules, our only responsibility is to ensure that our policies and contracts of employment reflect the current legislation.