2. Development of maternity and paternity leave
Constitution
Section 28
Every child has a right to family care or parental care.
A child’s best interests are of paramount importance in every matter concerning the child.
Section 23
Right to fair labour practices.
Section 9
Child’s bet interests are paramount.

3. Development of maternity and paternity leave
Basic Conditions of Employment Act
Purpose – give effect to and regulate right to unfair labour practice.
Give effect to South Africa’s obligation as member state.
Section 25 – female employees entitled to at least 4 months’ maternity leave.
Section 26 – protection of employees from hazardous conditions.
Section 27 – employees entitled to 3 days paid leave when child is born.

4. Development of maternity and paternity leave
Section 26 of BCEA
“26. Protection of employees before and after birth of a child
(1) No employer may require or permit a pregnant employee or an employee who is nursing her child to perform work that is hazardous to her health or the health of her child.
(2) During an employee’s pregnancy, and for a period of six months after the birth of her child, her employer must offer her suitable, alternative employment on terms and conditions that are no less favourable than her ordinary terms and conditions of employment, if –
(a) The employee is required to perform night work, as defined in section 17(1) or her work poses a danger to her health or safety or that of her child; and
(b) It is practicable for the employer to do so.”

5. Development of maternity and paternity leave
Unemployment Insurance Act
Section 24
Pregnant contributor – entitled to the maternity benefits.

6. Development of maternity and paternity leave
Employment Equity Act
Section 6(1)
No person may unfairly discriminate, directly or indirectly, against an employee, in any employment policy or practice, on one or more grounds, including:
Race, gender, sex, pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age, disability, religion, HIV status, conscience, belief, political opinion, culture, language, birth; or
Any other arbitrary ground.

7. Development of maternity and paternity leave
Burden of proof
If unfair discrimination is alleged on a ground listed in section 6(1), the employer must prove that such discrimination-
did not take place as alleged; or
is rational and not unfair, or is otherwise justifiable.
If unfair discrimination is alleged on an arbitrary ground, the complainant must prove that
the conduct complained of is not rational;
the conduct complained of amounts to discrimination; and
the discrimination is unfair.

8. Development of maternity and paternity leave
Implats disputes
Risk occupation:
Employee immediately withdrawn from position.
Place in suitable alternative position if available.
Not obliged to create alternative position.
If no suitable alternative position – place employee on 4 months paid maternity leave.
Thereafter, place employee on unpaid maternity leave.

9. Development of maternity and paternity leave
Brief summary of facts
Employed in positions regarded as risk occupations.
Notified Implats of pregnancy.
Removed from their positions.
Not offered alternative “risk free” positions.
Placed on mandatory, maternity leave.

10. Development of maternity and paternity leave
Sedie Tabane & others
Not bound by delineation of issues in the pre-arbitration minute because employees are lay people and unable to distinguish between direct and indirect discrimination.
Then proceeds to treat as indirect discrimination.
Not always necessary to cite comparators in matters concerning alleged unfair discrimination.
The fact that the identified comparators did not establish discrimination on the grounds of pregnancy (comparators similarly situated) not fatal.
This was only one aspect of their claim.

11. Development of maternity and paternity leave
Sedie Tabane & others
Section 26 of BCEA read with item 5.3 and of Code and section 15(2) of the EEA – establish positive duty on an employer to reasonably accommodate pregnant employees.
Includes implementation of sound workplace policies that afford reasonable accommodation.
Duty to accommodate extends beyond:
avoiding a specific act of discrimination; and
point of undue hardship to the employer such would render business “unfeasible”.
Implats failed to take sufficient steps to accommodate pregnant employees.

12. Development of maternity and paternity leave
Award
Found employees unfairly discriminated on grounds of pregnancy.
Ordered:
Compensation equal to period that placed on unpaid maternity leave.
Damages of R25,000.
Amendment of policy to align with findings in award.

13. Development of maternity and paternity leave
Labour Court – appeal (Sedie Tabane & others)
Implats’ conduct did not amount to unfair discrimination.
Commissioner’s enquiry ought to have stopped after finding that differentiation not based on the ground of pregnancy.
Commissioner did not have jurisdiction to determine dispute as affirmative action dispute.
Commissioner did not have jurisdiction to adjudicate on the fairness of the policy.
The appeal is upheld and arbitration award was set aside.

14. Development of maternity and paternity leave
Given Mputle & others
Matter turned on this question:
“[W]ould it be fair to place the Applicants [employees] on an early maternity leave prematurely?”
Held that the employees were discriminated against because the maternity policy does not cater for alternative leave but specifically directs employees to take maternity leave which cheats the employees of their right to enjoy 4 months maternity leave after giving birth.

15. Development of maternity and paternity leave
Jonase & another
“[22] It is clear from the evidence provided that the applicants were indeed discriminated against. The truth of the matter is that the duty is on the employer to provide employees with a safe working environment, however, that does not mean that employees should be prejudiced or be disadvantaged in the process. I agree with the employer that it is risky to allow pregnant employees to work underground but I disagree with the fact that an employer can direct employees to take unpaid leave where it is unable to secure an alternative. I am of the view that the employer’s failure to find alternatives was unfair to employees and that constitutes discrimination as the sole reason for the failure is the employees’ pregnancy. The employer is actually saying those who fall pregnant would do that at their own peril as there is no guarantee that an alternative will be found, and that cannot be condoned.”

16. Development of maternity and paternity leave
Labour Court - appeal (Jonase & another)
“[29] The commissioner found that there is an absolute duty on Implats to find suitable alternative employment for pregnant employees and that the failure to do so is per se unfair discrimination. But that is not what the policy provides for, and the policy – which sets out guidelines in any event – was not challenged. The policy aims to ensure that pregnant employees are not exposed to a dangerous workplace, i.e. underground. …
[30] If the employer cannot find them suitable alternative employment, the maternity policy kick in. In this case, there were no suitable alternative positions available for the complainant. And in those circumstances, there was no further duty on the employer to create non-existent positions for them. The employer acted lawfully, rationally and in accordance with its own policy.”

17. Development of maternity and paternity leave
MIA v State Information Technology Agency (Pty) Ltd – March 2015
Facts:
Male employee in civil union applied for maternity leave when his child was born by surrogate mother.
Employer refused on basis that BCEA covers female employees only and is silent on surrogate parents.
Employer offered family responsibility leave or special unpaid leave.
Employer ultimately granted 2 months adoption leave and 2 months unpaid leave.
Employee claimed:
unfair discrimination on grounds of gender, sex, family responsibility, sexual orientation.
damages.
payment for unpaid leave he had to take when child was born (2 months).

18. Development of maternity and paternity leave
MIA v State Information Technology Agency (Pty) Ltd – March 2015
Employer maternity leave policy:
4 months paid maternity leave.
2 months maternity leave on full pay for permanent employees adopting child younger than 24 months.
Employer’s reasons for refusal:
“Maternity” means female employees only.
Maternity leave policy designed to cater for employees who give birth.

19. Development of maternity and paternity leave
MIA v State Information Technology Agency (Pty) Ltd – March 2015
Outcome
Employer’s argument does not take interests of child into account.
Section 28 – Bill of Rights – every child has the right to family/parental care.
Children’s Act:
is an extension of the Bill of Rights
section 9 provides “In all matters concerning the care, protection and well-being of a child the standard that the child’s best interest is of paramount importance must be applied.”
regulates surrogacy agreements
Employee took responsibility of birth mother – immediately took responsibility for child – was present at birth.
Legislation re civil unions and surrogacy agreements is new and designed to give effect to Bill of Rights.

20. Development of maternity and paternity leave
MIA v State Information Technology Agency (Pty) Ltd – March 2015
Employer policies must reflect same rights.
BCEA has to be amended.
Employer policy discriminates against employee.
Employer must apply its policy to give recognition to commissioned parents in surrogacy agreements.
Granted payment for 2 months unpaid leave taken, but not damages.

21. Development of maternity and paternity leave
The Labour Laws Amendments Bill (LLAB)
November African Christian Democratic Party introduced the LLAB (private member’s Bill).
Key proposed amendments:
Parental leave:
entitlement to 10 consecutive days of parental leave to an employee who will be a parent but not a primary caregiver.
the 10 days will commence on the date the child is born; the date that an adoption order is granted; or the date that the child is placed in the care of the prospective adoptive parent by the court pending the completion of a final adoption order.

22. Development of maternity and paternity leave
Adoptive leave:
10 consecutive weeks for any employee (regardless of gender) who is an adoptive parent of a child who is below the age of two; or
parental leave of 10 consecutive days.
if there are 2 adoptive parents then only one may apply for adoption leave whilst the other applies for parental leave.
Commissioning parental leave:
10 consecutive weeks for a commissioning parent (regardless of gender); or
10 consecutive days.

23. Development of maternity and paternity leave
UIF PROPOSED AMENDMENTS
The Bill proposes various amendments to the Unemployment Insurance Act, 2001.
Such amendments will allow for those who take parental, adoption or commissioning leave to claim benefits when such leave is taken.