DISCREPANCY BETWEEN THE CONSTITUTION AND THE BASIC CONDITIONS OF EMPLOYMENT ACT – PARENTAL LEAVE

In the matter of VAN WYK AND OTHERS V MINISTER OF EMPLOYMENT AND LABOUR (2022-017842) [2023] ZAGPJHC 1213 (25 OCTOBER 2023), the Johannesburg High Court (HC) addressed allegations of unconstitutionality in sections of the Basic Conditions of Employment Act 75 of 1997 (BCEA) concerning maternity, adoption, commissioning surrogacy, and parental leave.

The primary issue was whether these provisions unfairly discriminated against certain parents based on irrational grounds.

The BCEA distinguishes between three scenarios:

• a child born to a mother,

• a child born via surrogacy, and

• an adopted child under two years old.

The law mandates that a birth mother cannot work for four weeks before and six weeks after childbirth unless approved by a doctor or midwife.

Additionally, the BCEA provides four consecutive months of maternity leave for the child-bearing parent, while fathers are entitled to only ten days of leave from the child’s birth date.

For adoptive parents, leave is recognized only if the child is under two years old. One adoptive parent is entitled to ten consecutive weeks of leave, and the other parent receives ten days of leave. The same provisions apply to parents of a child born via surrogacy.

The claim argued that the BCEA’s differentiation between mothers, fathers, and non-child-bearing parents was unconstitutional.

It was contended that the law’s failure to provide equal parental leave for all parents constituted unfair discrimination, violating their dignity.

Furthermore, the limitation of adoptive leave to children under two years old was challenged as irrational and discriminatory.

The Court recognized that the BCEA’s distinctions between parents created an asymmetry in how the law viewed the family dynamic. In families where both parents equally shared child-rearing responsibilities, the law failed to acknowledge or support this dynamic, disrupting the social balance within such families.

The Court ruled that all parents, regardless of the child’s birth method or age, should be entitled to the same period of leave.

The Court found that the BCEA’s current provisions violated Sections 9 and 10 of the Constitution, which guarantee equality and human dignity.

Consequently, it ordered that until Parliament aligns the BCEA with the Constitution, all parents should collectively enjoy four consecutive months of parental leave, which they can allocate as they see fit.

The current status is that the Johannesburg High Court provided interim relief pending confirmation from the Constitutional Court.

Parliament has been given two years to amend the BCEA.

In the meantime, the Court’s ruling allows all parents to share four months of parental leave as they choose, marking a significant step towards more inclusive parental roles in law.

This decision moves away from traditional gendered stereotypes and acknowledges the diverse structures of modern families.

J Goldberg