PRIVATE MEMBER’S BILL

1. PRIVATE MEMBER’S BILL

2. Private Member’s Bill • The African Christian Democratic Party (ACDP) submitted a Private Member’s Bill to National Economic, Development and Labour Council (NEDLAC) in terms of section 73(2) of the Constitution of South Africa which states that a member of the National Assembly may introduce a Bill in the Assembly. • In terms of section 5(1)(c) of the NEDLAC Act, 1994, NEDLAC must consider all proposed Labour legislation relating to labour market policy before being introduced in Parliament.

3. Synopsis of the Bill • The proposed Bill amends the Basic Conditions of Employment Act, 1997 (Act No 75 of 1997) to provide for the following: • Parental leave • 10 consecutive days parental leave • when a child is born; and • when a child is adopted

4. Synopsis of the Bill cont. • Adoption leave • 10 consecutive week’s adoption leave or 10 days parental leave on adoption of a child if the adoption order is made in respect of two adoptive parents.

5. Synopsis of the Bill cont. Commissioning parental leave • 10 consecutive weeks or 10 days parental leave on the date a child is born as a result of a surrogate motherhood agreement.

6. Synopsis of the Bill cont. • The proposed Labour Laws Amendment Bill seeks to provide for parental leave, adoption leave and commissioning parental leave as well as for the payment from the Unemployment Insurance Fund for parental and commissioning parental leave.

7. The Basic Conditions of Employment Act, 1997 Maternity leave: • A pregnant employee is entitled to four consecutive months’ maternity leave (unpaid). The maternity leave is paid by the Unemployment Insurance Fund.

8. BCEA Cont. Family Responsibility leave: •  Full time employees are entitled to three days paid family responsibility leave per year, on request, when the employee’s child is born or sick, or in the event of the death of the employee’s spouse or life partner, or the employee’s parent, adoptive parent, grandparent, child, adopted child, grandchild or sibling.

9. BCEA Cont. • The BCEA does not make provision for adoption leave or commissioning parental leave

10. NEDLAC PROCESS, 2001 • The Unemployment Insurance Act provides for the payment of maternity (121 days) and adoption (full accumulated credits) benefits from the Unemployment Insurance Fund.

11. Labour Court Judgment on Maternity • Judgment in the Durban Labour Court against SITA’s refusal to grant a gay man four month’s “maternity” leave on the basis that he is not the biological mother of the child said it was unfair discrimination to refuse “maternity leave” to a gay man who became a parent through surrogacy.

12. Labour Court Judgment Cont. • Judge David Gush said this approach ignored the fact that the right to maternity leave in the Basic Conditions of Employment Act in the current circumstances was not linked solely to the welfare of the child’s mother but must also take the best interests of the child into account. • The Court therefore has dealt with surrogacy and adoption maternity leave. The challenge will be on paternity leave which NEDLAC constituencies are deliberating on.

13. NEDLAC PROCESS • Ms Cheryllyn Dudley, ACPD MP tabled the Labour Laws Amendment Bill, 2015 on 25 June 2015 • The task team meetings were held on the following dates: • 15 May 2015; • 25 June 2015; and • 27 January 2016.

14. NEDLAC PROCESS Cont. • The social partners had challenges to deal with the Amendment Bill due to the fact that it is a deviation in terms of the Nedlac Protocol. Point 4.2.1 of the Nedlac Protocol on procedure for tabling issues read as follows: “A Government department wishing to table a matter at Nedlac must do so via the Executive Director, who would then allocate that matter to a Chamber or combination of Chambers for engagement”. The task team therefore proposed this matter be tabled at MANCO for guidance on possible amendment to the Nedlac Process in order to guide future tabling of matters by individual political parties or members of Parliament. The Task Team was concerned about the precedent this might create in the absence of a clear guidance from the Protocol.  

15. NEDLAC PROCESS Cont. • The social partners agreed to deal with the proposed amendments in the Private Member’s Bill that have an impact on the Unemployment Insurance Act, 2001 and the Basic Conditions of Employment Act, 1997. • Currently NEDLAC social partners are discussing the national minimum wage and labour market stability, it is anticipated that this discussion will necessitate amendments to the labour laws. It is during this period that the amendments proposed by the Private Member’s Bill will be considered

16. NEDLAC PROCESS Cont. • Business and Labour proposed new categories of beneficiaries to be included under UIF. It was agreed to consider them during a second phase of improvement of benefits by commissioning further work on the options and cost implications to the sustainability of the fund. The proposals by Labour and Business are:

17. NEDLAC Process Cont. • Resignation; • Fixed-term and seasonal contracts informally employed and self-employed; • Consider integration and alignment with existing comprehensive social security policies; • Inclusion of asylum seekers; and • Short-time

18. NEDLAC PROCESS Cont • The Social Partners through NEDLAC informed the Unemployment Insurance Fund Commissioner of the amendments that emanated from engagements on the Private Member’s Bill and was requested to commission an actuarial study on the affordability of the following proposals for the UIF:

19. Commission of actuarial study • Application for commissioning parental benefits; • Payment for commissioning parental benefits; • Parental leave and payment of benefits; and • Payment of adoption benefits

20. Thank You…