{"id":238277,"date":"2022-09-27T03:27:36","date_gmt":"2022-09-27T01:27:36","guid":{"rendered":"https:\/\/www.groundup.org.za\/article\/couple-challenges-law-on-maternity-leave\/"},"modified":"2022-09-27T03:27:36","modified_gmt":"2022-09-27T01:27:36","slug":"couple-challenges-law-on-maternity-leave","status":"publish","type":"post","link":"https:\/\/www.myza.co.za\/press\/couple-challenges-law-on-maternity-leave\/","title":{"rendered":"Couple challenges law on maternity leave"},"content":{"rendered":"
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Both parents, not just the mother, should be entitled to leave after a child is born or adopted, argue a couple in a court challenge to the Basic Conditions of Employment Act. Image generated by Stable Diffusion (Public domain<\/a>)<\/p>\n

A Polokwane couple have launched a constitutional challenge to the employment laws, arguing that provisions which allow only women to take four months \u201cmaternity\u201d leave are discriminatory.<\/p>\n

Werner and Ika van Wyk, with civic organisation Sonke Gender Justice, say times have changed and both parents should be entitled, by law, to the four months leave.<\/p>\n

In their application to the Johannesburg High Court against the Minister of Employment and Labour, they seek an amendment to the Basic Conditions of Employment Act (BCEA). They want the definition of \u201cmaternity leave\u201d to be changed to \u201cparental and care-giving leave\u201d.<\/p>\n

They want an additional category of leave – perinatal leave – for women who do not want to take the full four months leave.<\/p>\n

The couple also seek an order that the minister enact provisions which allow for \u201cequal parental leave and benefits\u201d for four months for biological parents, adoptive parents, and parents whose baby is born to a surrogate mother.<\/p>\n

At present, the BCEA, while referring generally only to employees, provides specifically for four months \u201cmaternity leave\u201d. Whether or not the leave is paid depends on the contract with the employer.<\/p>\n

Recently, the Act was amended to give fathers 10 days \u201cpaternity\u201d leave.<\/p>\n

In his affidavit, Werner van Wyk said these provisions not only discriminate against fathers – who are also entitled to bond with their newborns and share in the responsibilities of child-rearing – but also against mothers, who are forced to leave their jobs and assume the role of unpaid \u201cdefault parents\u201d.<\/p>\n

\u201cThe 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,\u201d he said.<\/p>\n

Van Wyk said their son was born in April 2021.<\/p>\n

He worked for a financial services company. If his wife, the chief executive of two small companies, had taken maternity leave, her businesses would have been unable to trade and would most likely have closed down.<\/p>\n

\u201cThis needed to be weighed up against the crucial and fundamental importance of hands-on, dedicated childcare for my son,\u201d he said.<\/p>\n

\u201cWe took the decision that I would be our son\u2019s primary caregiver and I should apply for the male equivalent of maternity leave.\u201d<\/p>\n

He applied for, and was granted, the standard 10 days, after which he applied for \u201cmaternity leave\u201d, as stipulated in the BCEA and in his company\u2019s own policy, but this was rejected by his company.<\/p>\n

The couple then decided that he would apply for a six-month sabbatical, comprising two months normal leave and four months unpaid leave.<\/p>\n

The deal was that he would have to \u201cwork back\u201d the four months, that he would not accumulate annual leave over that period, and that he would only be paid 30% of his package to fund compulsory benefit contributions.<\/p>\n

\u201cOur 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,\u201d Van Wyk said.<\/p>\n

\u201cNot all fathers can apply for sabbatical leave – and as such, the provisions of the BCEA discriminate against fathers overall,\u201d he said.<\/p>\n

Van Wyk said the the Bill of Rights prohibited discrimination on the basis of sexual orientation and gender.<\/p>\n

\u201cThe nature of the right in question is my right to equality under the law and a woman\u2019s right to continued employment.<\/p>\n

\u201cThere has been an increase in labour participation of women and an increase in the necessity of the involvement of fathers in caregiving and bringing up children. Parents should share responsibilities and mothers should not be burdened with the large volumes of unpaid work in households.<\/p>\n

\u201cThe male equivalent of maternity leave will allow for fathers to set the foundation for a more equal distribution of responsibilities in child care,\u201d he said.<\/p>\n

Van Wyk said the Act was out of step with international trends. Other countries, such as Spain, Denmark, the United Kingdom, Germany, Australia and Sweden, had recognised that the roles of mothers and fathers were evolving and that \u201cequal rights between the sexes require that parents should be equally responsible for childcare\u201d.<\/p>\n

Because the matter involves a constitutional issue, the couple\u2019s attorneys, Barter McKellar, have issued a notice calling on interested parties to join the application as amicus curiae, following which the minister will file a response.<\/p>\n<\/p><\/div>\n

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Source: GroundUp<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"

Both parents, not just the mother, should be entitled to leave after a child is born or adopted, argue a couple in a court challenge to the Basic Conditions of Employment Act. Image generated by Stable Diffusion (Public domain) A Polokwane couple have launched a constitutional challenge to the employment laws, arguing that provisions which […]<\/p>\n","protected":false},"author":1,"featured_media":238278,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_genesis_hide_title":false,"_genesis_hide_breadcrumbs":false,"_genesis_hide_singular_image":false,"_genesis_hide_footer_widgets":false,"_genesis_custom_body_class":"","_genesis_custom_post_class":"","_genesis_layout":"","ngg_post_thumbnail":0,"_jetpack_memberships_contains_paid_content":false,"footnotes":"","jetpack_publicize_message":"","jetpack_publicize_feature_enabled":true,"jetpack_social_post_already_shared":true,"jetpack_social_options":{"image_generator_settings":{"template":"highway","default_image_id":0,"font":"","enabled":false},"version":2}},"categories":[9928],"tags":[28001],"class_list":{"0":"post-238277","1":"post","2":"type-post","3":"status-publish","4":"format-standard","5":"has-post-thumbnail","7":"category-groundup","8":"tag-groundup","9":"entry"},"jetpack_publicize_connections":[],"jetpack_featured_media_url":"https:\/\/www.myza.co.za\/press\/wp-content\/uploads\/2022\/09\/couple-challenges-law-on-maternity-leave.png","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/www.myza.co.za\/press\/wp-json\/wp\/v2\/posts\/238277","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.myza.co.za\/press\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.myza.co.za\/press\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.myza.co.za\/press\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.myza.co.za\/press\/wp-json\/wp\/v2\/comments?post=238277"}],"version-history":[{"count":0,"href":"https:\/\/www.myza.co.za\/press\/wp-json\/wp\/v2\/posts\/238277\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.myza.co.za\/press\/wp-json\/wp\/v2\/media\/238278"}],"wp:attachment":[{"href":"https:\/\/www.myza.co.za\/press\/wp-json\/wp\/v2\/media?parent=238277"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.myza.co.za\/press\/wp-json\/wp\/v2\/categories?post=238277"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.myza.co.za\/press\/wp-json\/wp\/v2\/tags?post=238277"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}