The Basic Conditions of Employment Act No 75 of 1997, as amended, governs different types of leave. There was an Amendment Act No 10 of 2018 that covered various amendments, including leave for adoption.
There is confusion within the Department of Employment and Labour. It doesn’t seem to properly educate its inspectors and advisers. Above this, many trade union officials have not been kept up to date on the new types of leave. Lately, I have had many queries about adoption leave.
Obviously, adoption must be that as envisaged in the Children’s Act of 2005. Under the legislation, maternity benefits will be paid to adoptive parents. An employee who is an adoptive parent of a child below the age of 2 is entitled to at least 10 weeks’ leave consecutively, or parental leave of at least 10 consecutive days.
It will be up to the adoptive parents to decide who takes the parental leave, and who the adoptive leave. The employees must notify the employer, in writing, on the date on which the employee intends to start adoption leave and when they intend to return to work. The notification should be given to the employer at least a month before the date of taking leave.
Likewise, the employee taking parental leave must do the same with their employer. Invariably, their employers are different employers and a similar notification has to be sent to each employer. In other words, if the adoption order is made for two adoptive parents, one applies for the adoption leave and the other for parental leave.
However, if a competent court orders that a child is placed in the care of two prospective adoptive parents, the parents may apply for that leave, pending the adoption.
Again, one parent applies for the 10 consecutive days and the other for 10 consecutive weeks. It must be remembered that the parents have the ability to select which of the two is the prospective recipient of the parental leave and the other would then receive the adoption leave.
There is separate law with regard to commissioning parental leave. This deals with a surrogate motherhood agreement. In this case, the commissioning parental leave is at least 10 consecutive weeks’ leave.
The employee may begin commissioning parental leave on the date a child is born as a result of a surrogate motherhood agreement. Likewise, the employee must notify the employer, in writing, about when the leave will start and when they will return.
Like before, the commissioning parental leave recipient must notify the employer a month before a child is expected to be born as a result of a surrogate motherhood agreement.
Again, if the surrogate motherhood agreement has two commissioning parents, one may apply for commissioning parental leave and the other parental leave.
It must be noted that “commissioning parent” has the meaning assigned to it under Section 1 of the Children’s Act and “surrogate motherhood agreement” has a meaning assigned to it under the same Children’s Act.
The special types of leave are in addition to all the other types of leave as contained in Chapter 3 of the Basic Conditions of Employment Act. Annual leave and sick leave remain intact.
Maternity leave remains four consecutive months and must begin any time from four weeks before the expected date of birth, unless otherwise agreed, or on a date from which a medical practitioner certifies that it is necessary for the employee’s health or that of the unborn child.
* Michael Bragraim
** The views expressed here are not necessarily those of Independent Media.
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