Rights for dads result in reduced maternity benefits for mums

Women planning on starting a family should check for changes in company policy on maternity benefits.

A recent survey by Remchannel, a subsidiary of Old Mutual and leading research consultancy, found a drop in the number of employers offering fully paid maternity leave.

Remchannel conducts a salary and benefits survey twice a year. It found that in its previous survey 58.5 percent of employers were offering fully paid maternity leave, but in the latest survey conducted early this year, only 41.7 percent of employers were offering fully paid maternity leave.

Lindiwe Sebesho, the managing director of Remchannel, said in a recent media webinar on the survey that the consultancy believes this is a result of the recent Constitutional Court case challenging the rights of fathers to parental leave.

The case challenging parental rights

A Polokwane couple challenged the provisions of the Basic Conditions of Employment Act (BCEA) in 2022.

The father Werner van Wyk wanted to take leave so that he, instead of his wife who ran two businesses, could look after his son. The couple argued in their application that the businesses would have been unable to trade and would probably have closed if she had taken maternity leave.

The BCEA at that stage provided for 10 days parental leave for fathers and four months for mothers.

The court ruled in October last year that the provisions of the BCEA, and the Unemployment Insurance Act (UIA) which provides for the payment of maternity benefits, were unconstitutional as they discriminate against parents on the basis of gender, Shivani Moodley, senior associate for Employment at law firm ENS, says.

Moodley says in its judgment in Van Wyk & Others v Minister of Employment and Labour, the court gave parliament 36 months to amend the BCEA and the UIA to remedy the unconstitutionality and unfair discrimination.

Parental leave rights since the case

The Court further ruled that an interim parental leave regime be applied in terms of which both parents are entitled to share the four months and 10 days’ parental leave, with the apportionment being at their discretion.

Where parents do not agree on the apportionment of the parental leave entitlement, the parental leave must be divided between the two of them, as equally as is possible, Moodley says.

Under the new interim arrangement, when one parent is unemployed, the other is entitled to four months and single parents are also entitled to four months, Moodley says.

This parental leave entitlement also applies to parents who become parents through a surrogacy agreement or if they adopt a child of younger than two years of age. However, the court said the adoption age was arbitrary and parliament should determine an appropriate age, Moodley says.

Paid maternity leave at employer’s discretion

Employers are only obliged to allow parents to take the leave. They are not obliged to pay them during the leave as employees can claim maternity benefits from the unemployment insurance fund (UIF) benefits during this time.

UIF maternity benefits are, however, based on salary and the length of time you have contributed. They typically do not cover your earnings in full, especially for higher earners as the salary on which the benefits are based is capped.

Employers concerned and changing benefits

Companies that do offer paid maternity leave are now concerned about the increased cost of having to pay benefits to men. Men dominate the workforce and can become fathers at much older ages than women can bear children, Sebesho says. They are responding by changing their parental leave policies, she says.

“There is a clear move away from standardised paid leave models toward a mix of fully paid, partially paid and unpaid benefits layered over statutory leave entitlements,” Sebesho says.

“Employers are now reassessing paid leave more deliberately because shared parental leave has expanded, changing the cost and workforce planning assumptions behind the benefit.”

Moodley said ENS has also experienced employers who offer paid maternity expressing concerns about increased parental leave liability. The law firm has also observed the trend of employers reducing the amount of paid parental leave that is being offered.

Proposed labour law amendments

The Labour Law Amendment Bill addressing the Constitutional Court order was published in February for public comment.

It is the first draft of the amended legislation and is likely to change after the labour minister considers public comments submitted on the bill, Moodley says.

The draft amendment bill largely adopts the same approach to parental leave as the Constitutional Court put in place, she says.

The material differences from the Constitutional Court order and the existing law are: 

• Employees who adopt a child are eligible for parental leave if that child is below the age of six years instead of two years as the current law provides.
  
  
• Employees are not entitled to take parental leave more than once in any 12 (twelve) month period unless they are women who have given birth. There is no limit on how often leave can be taken in the existing legislation.

• If the parents are employed by different employers and both parents are claiming parental leave, the employee must submit to their employer:
  
  
  • Notice of when they intend to commence parental leave and return to work after parental leave; and
  • Any agreement that may be concluded between the parents concerning parental leave.
    
    
• If an agreement cannot be concluded between the parents, then:

• The birth parent (if any) determines how much parental leave she shall be taking, up to a maximum of four months.
• The co-parent is then only entitled to the balance of the four months and ten days.

• If neither of the parents gave birth to the child, then employers must permit their employee to take as close to half of the parental leave entitlement as is possible.

Employer support should not be compromised

Sebisho says Remchannel believes shared responsibility for a child is key, but it should not compromise the support employers provide.

“We really hope that the percentage of organisations that are cutting costs from this perspective does not continue to increase.”

Mothers are still taking time out and suffering the consequences because there is already a gender pay gap. If pay during maternity continues to be taken away, it will potentially increase the gender pay gap, she says.

Employers should consider that paid maternity leave is a key benefit that talented women look for in an employer and a clear signal of how an organisation will support caregiving, career continuity and financial security at a critical life stage, Sebesho says.