On 23 November 2018, President Ramaphosa signed into law the Labour Laws Amendment Act, 10 of 2018 (Amendment Act).

The Amendment Act served to, among others, introduce parental, adoption and commissioning parental leave entitlements to employees under the Basic Conditions of Employment Act, 1997 (BCEA), and to amend the Unemployment Insurance Act, 2001 (UIA) to provide for the right to claim parental and commissioning parental benefits from the Unemployment Insurance Fund (Fund).

The amendments contemplated by various sections of the Amendment Act have come into force on different dates. For example, with effect from:

• 1 November 2019, the UIA was amended to make provision for the payment of parental and adoption leave benefits; and
• 1 January 2020, the BCEA was amended to make provision for parental, adoption and commissioning parental leave.

On 1 April 2020, the Amendment Act effected further amendments to the UIA to update the provisions pertaining to adoption benefits and to provide for the payment of commissioning parental benefits.

The pertinent amendments introduced to the UIA by the Amendment Act are as follows:

Adoption benefits

The right of one adopting parent to claim adoption benefits where the child has been adopted in terms of the Children’s Act, 2005 (Children’s Act), or where the child has been in the care of prospective adoptive parents by a competent court pending the finalisation of an adoption order.

The entitlement to this benefit commences on the date that a competent court grants an adoption order, or on the date on which the child is placed in the care of the prospective adoptive parents by a competent court (whichever date occurs first) and the application for the benefit must be made within 12 months of this date.

An employee is not entitled to adoption benefits unless s/he was employed for at least 13 weeks before the date of application for the benefit (irrespective of whether or not s/he contributed to the Fund).

When taking into account any adoption leave to be paid to the employee in terms of any other law, collective agreement, or employment contract, that benefit cannot exceed that remuneration the employee would have received had the employee been at work.

The maximum period of adoption leave is 10 consecutive weeks.

Commissioning parent benefits

The right of one commissioning parent to claim commissioning parental benefits where a child is born as a result of a valid surrogate motherhood agreement in terms of the Children’s Act.

The entitlement to this benefit commences on the date of childbirth and the application for the benefit must be made within 12 months of this date.

An employee is not entitled to commissioning parental benefits unless s/he was employed for at least 13 weeks before the date of application for the benefit (irrespective of whether or not s/he contributed to the Fund).

When taking into account any commissioning parental leave to be paid to the employee in terms of any other law, collective agreement, or employment contract, that benefit cannot exceed that remuneration the employee would have received had the employee been at work.

The maximum period of commissioning parental leave is 10 consecutive weeks.