- A Limpopo couple is difficult labour legal guidelines on maternity leave, arguing that each mother and father needs to be entitled to the identical leave.
- The Basic Conditions of Employment Act is discriminatory, they are saying in an software to the Johannesburg High Court.
- Supported by Sonke Gender Justice, they need the Minister of Labour to enact provisions which permit for “equal parenting leave and benefits” according to worldwide traits.
A Polokwane couple have launched a constitutional problem to the employment legal guidelines, arguing that provisions which permit solely girls to take 4 months “maternity” leave are discriminatory.
Werner and Ika van Wyk, with civic organisation Sonke Gender Justice, say occasions have modified and each mother and father needs to be entitled, by law, to the 4 months leave.
In their software to the Johannesburg High Court towards the Minister of Employment and Labour, they search an modification to the Basic Conditions of Employment Act (BCEA). They need the definition of “maternity leave” to be modified to “parental and care-giving leave”.
They need a further class of leave – perinatal leave – for girls who don’t wish to take the complete 4 months leave.
The couple additionally search an order that the minister enact provisions which permit for “equal parental leave and benefits” for 4 months for organic mother and father, adoptive mother and father, and oldsters whose child is born to a surrogate mom.
At current, the BCEA, whereas referring typically solely to workers, gives particularly for 4 months “maternity leave”. Whether or not the leave is paid relies upon on the contract with the employer.
Recently, the Act was amended to provide fathers 10 days “paternity” leave.
In his affidavit, Werner van Wyk mentioned these provisions not solely discriminate towards fathers – who’re additionally entitled to bond with their newborns and share within the obligations of child-rearing – but in addition towards moms, who’re pressured to leave their jobs and assume the position of unpaid “default parents”.
“The inequality in providing maternity leave without a corresponding period of paternity leave causes an unjustified limitation on the rights of a father and places an unjustifiable burden on the mother to become the default care-giver. The Act needs to be amended to address the patent and clear imbalance of rights between mothers and fathers,” he mentioned.
Van Wyk mentioned their son was born in April 2021.
He labored for a monetary companies firm. If his spouse, the chief government of two small firms, had taken maternity leave, her companies would have been unable to commerce and would almost definitely have closed down.
“This needed to be weighed up against the crucial and fundamental importance of hands-on, dedicated childcare for my son,” he mentioned.
“We took the decision that I would be our son’s primary caregiver and I should apply for the male equivalent of maternity leave.”
He utilized for, and was granted, the usual 10 days, after which he utilized for “maternity leave”, as stipulated within the BCEA and in his firm’s personal coverage, however this was rejected by his firm.
The couple then determined that he would apply for a six-month sabbatical, comprising two months regular leave and 4 months unpaid leave.
The deal was that he must “work back” the 4 months, that he wouldn’t accumulate annual leave over that interval, and that he would solely be paid 30% of his bundle to fund obligatory profit contributions.
“Our need to have a parent and primary caregiver for our newborn son prejudiced my working conditions and our financial position in the short term. By comparison, my wife losing her two businesses would have had long-term financial implications,” Van Wyk mentioned.
“Not all fathers can apply for sabbatical leave – and as such, the provisions of the BCEA discriminate against fathers overall,” he mentioned.
Van Wyk mentioned the the Bill of Rights prohibited discrimination on the premise of sexual orientation and gender.
“The nature of the best in query is my proper to equality beneath the law and a lady’s proper to continued employment.
“There has been a rise in labour participation of ladies and a rise within the necessity of the involvement of fathers in caregiving and citing kids. Parents ought to share obligations and moms shouldn’t be burdened with the big volumes of unpaid work in households.
“The male equivalent of maternity leave will allow for fathers to set the foundation for a more equal distribution of responsibilities in child care,” he mentioned.
Van Wyk mentioned the Act was out of step with worldwide traits. Other international locations, similar to Spain, Denmark, the United Kingdom, Germany, Australia and Sweden, had recognised that the roles of moms and dads had been evolving and that “equal rights between the sexes require that parents should be equally responsible for childcare”.
Because the matter entails a constitutional challenge, the couple’s attorneys, Barter McKellar, have issued a discover calling on events to hitch the applying as amicus curiae, following which the minister will file a response.
© 2022 GroundUp. This article was first revealed here.
