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Legislative Options for The Combination of Work and Care in South Africa. Lisa Dancaster Presentation at the 5 th African Regional Conference of the IIRA, March 2008. Two Aspects Considered:. Contextual factors that influence work-family integration in South Africa
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Legislative Options for The Combination of Work and Care in South Africa Lisa Dancaster Presentation at the 5th African Regional Conference of the IIRA, March 2008.
Two Aspects Considered: • Contextual factors that influence work-family integration in South Africa • An examination of legislative measures to reconcile work and caregiving in South Africa with a comparison of similar legislation in other national contexts.
Increased Care Needs in the Context of an Ageing Population and HIV/AIDS • South Africa has one of the continent’s highest percentage of older inhabitants. • In the white population group the ageing structure resembles that of some of the world’s more developed countries with over a quarter of the white population being over 50 years old (Kinsella & Ferriera, 1997) . • This corresponds with 11% of Africans in the same age group, slightly less than for Asians and Coloureds (Kinsella & Ferriera, 1997).
Increased Care Needs in the Context of an Ageing Population and HIV/AIDS • Caregiving in the context of HIV/AIDS – home-based care. This has eased the pressure on the health systems but has shifted the burden of care from the state to families and communities and within these, primarily women and girls, without the necessary support and attention to assist them with the increased caregiving function.
Work-Family Integration in the South African Context • Increasing female labour force participation from 38 percent in 1995 to 49,9 percent in 2007 (Stats SA). • Increasing rates for females in part-time employment from 9.9 percent in 1995 to 12.1 percent in 2004 (Posel & Muller, 2007). Average rate in OECD is 26% (Linacre, 2007).
Country Comparison of Part-time employment as a percentage of total employment, by sex.
Legislative Options for the Combination of Work and Care • Leave Options • Leave for care emergencies (‘force majeure’ leave); • Leave available at the time of birth of a child; • Maternity leave • Paternity leave • Leave available to care for young child/other; • Parental leave • Flexible Work Arrangements
Leave for care emergencies (‘force majeure’ leave) • Workers with care responsibilities may need to take time off to attend to sudden care emergencies such as sudden illness of a child or dependant family member or the last minute unavailability of a substitute caregiver. • The EU parental leave directive gives all workers an entitlement to ‘time off from work on grounds of force majeure for urgent family reasons in cases of sickness or accident making their immediate presence indispensable’, without specifying minimum requirements for length of time or payment (Clause 3.2).
Leave for care emergencies: Family Responsibility Leave • Basic Conditions of Employment Act (95 of 1995) provides that “family responsibility leave” of a minimum of three days paid leave per twelve month cycle can be taken to attend to the birth or illness of a child or death of a stipulated family member provided that an employee has worked for his/her employer for longer than four months and works at least four days per week.
Leave for care emergencies (‘force majeure’ leave) • In the UK the Employment Rights Act provides workers with an entitlement to ‘reasonable time off’ during working hours to: • provide assistance on an occasion when a dependant fall ill, gives birth or is injured or assaulted (illness of injury includes mental illness or injury); • to make arrangements for the provision for a dependant who is ill or injured; • in consequences of the death of a dependant; • because of an unexpected disruption or termination of arrangements for the care of a dependant, or • to deal with an incident which involves a child of the employee and which occurs unexpectedly in a period during which an educational establishment which the child attends is responsible for him. • There is no entitlement to payment.
Leave for care emergencies: Contrasting Family Responsibility Leave with UK Provision • A comparison of the provisions of our family responsibility leave with this provision in the ERA is considered in terms of: • the circumstances in which this leave can be utilised; • the persons for whom it can be utilized; • the duration for which it can be utilized; and • employee qualifications for utilization.
Comparison: Circumstances for use of this leave • The reasons for time off in the UK provision are wider than those contained in ‘family responsibility leave’ in South Africa which is limited to time off to attend to birth, sickness and death only. In addition to the use of this leave for birth, sickness and death, the UK provision also permits this leave to be utilized for unexpected disruptions in care such as the failure of the substitute caregiver to arrive for work or unexpected incidents at school that require attendance by a caregiver.
Comparison: Persons for whom it can be utilised • In South Africa, family responsibility leave is only available for the birth or illness of a child. Accordingly this leave is not available to attend to a sick adult dependant. • The recipients of the care are defined more broadly in the UK provision where ‘dependant’ is defined as the workers spouse, child, partner ‘or a person who lives in the same household’ (other than tenants, boarders or lodgers). It also includes ‘any person who reasonably relies on the employee a) for assistance on an occasion when the person falls ill or is injured or assaulted, or b) to make arrangements for the provision of care in the event of illness or injury’.
Comparison:Duration of FRL • ‘Reasonable time off’ is not defined in the UK provision. • In South Africa, family responsibility leave (FRL) is limited to three days per twelve month cycle and five days in the case of domestic workers. The different duration of this leave for domestic workers and ‘other’ employees appears to have arisen from concern that live-in domestic workers spend more time on travel and accordingly require a greater period of leave.
Comparison: Qualifications for Utilisation • Family responsibility leave is only available to employees who work at least four days a week and who have worked for their employer for the last four months. • No such qualification exists on other leave provisions such as sick leave or annual leave.
Leave available at the time of birth of a child:Maternity leave • It is set at a minimum of fourteen weeks in the EU Directive. • In South Africa, the Basic Conditions of Employment Act provides for a minimum period of four consecutive months maternity leave with job security guaranteed through the provisions regulating automatically unfair dismissals in the Labour Relations Act. Employee’s on maternity leave are able to claim up to 17,32 weeks payment from Unemployment Insurance with the percentage payment related to earnings. An employee must be working 24 hours a month to be eligible for statutory maternity leave.
Leave available at the time of birth of a child:Paternity leave • South Africa has no separate legislative provision governing paternity leave. Father’s who wish to take leave have to do so in terms of utilizing their family responsibility leave. • At present, male employee’s in the UK are entitled to paternity leave for two weeks paid (Statutory Paternity Pay), to be taken within fifty six days of the birth.The government plans to increase this paternity leave to six months once maternity leave has been extended to twelve months.
Leave Available to care for a young child/other (parental leave) • The EC Directive on Parental Leave recognizes this type of leave as distinct from maternity leave and provides that in addition to member states providing for a minimum of fourteen weeks maternity leave, they should also make provision for no less than three months parental leave for women and men workers to be taken before the child’s eighth birthday. No payment for this leave is specified in the EU Directive. • South African law does not make any provision for this type of parental leave.
Flexible Work Arrangements: • In April 2003 the right to request flexible work was introduced in the UK to parents of children under 6 years old and disabled children under eighteen years and, from April 2007 this right was extended to employees caring for adults. This gives eligible employees the right to request changes in their working hours or the location of their work.
Flexible Work Arrangements: • In South Africa there is no separate legislative right for employees to request flexible working arrangements. • It is argued that there is a need for serious debate on the introduction of a separate legislative right to request flexible working arrangements in South Africa.
Conclusion:Recommendations re legislative changes to leave provisions. • Family responsibility leave should be increased in duration. • The restrictive qualifications preclude a large number of employees from accessing it and should be reconsidered. • The scope of circumstances and persons for whom family responsibility leave may be utilized should also be broadened; • Paternity leave should not be included under family responsibility leave but should be considered as a leave in its own right or it should form part of a ‘fathers only’ quota in parental leave;
Conclusion:Recommendations re legislative changes to leave provisions. • Parental leave, as the period of time after maternity leave to care for the early childhood development of an infant should be considered for inclusion in the Basic Conditions of Employment Act. • The inadequacy of statutory maternity leave in South Africa, both in terms of its duration and entitlement to payment, requires reassessment in the context of improved international maternity leave provisions.
Conclusion:Recommendations re legislative changes. • There is also the need to consider and debate the introduction of the legal right to request flexible working arrangements as a measure to assist employees in the combination of work and care.
Conclusion: • The cost of doing nothing to reconcile work and family life is not nothing – • it is a tangible cost which is born by those providing care for others, and a cost to the economic system through the loss of the integration of these people in the most appropriate way into the world of work (Murray, 2001).
