'Massive uncertainty' about new parental leave benefit - employment expert

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If you have just welcomed a new baby and are getting ready to claim unemployment insurance for the new 10-day parental leave benefit, maybe hold your horses.

There is as yet "massive uncertainty" around the implementation of parental leave in the workplace, employment law expert Johan Olivier of Webber Wentzel told Fin24 on Wednesday.

It relates to a benefit allowing a parent, who does not qualify for maternity or paternity leave, to take 10 consecutive days of parental leave when a child is born.

"It may be true that qualifying employees can now formally apply for parental benefits through the Unemployment Insurance Fund (UIF), but such employees are not at present legally entitled to parental leave under the Basic Conditions of Employment Act (BCEA)," said Olivier.

Therefore, in his's view, one cannot actually claim parental benefits as yet from the UIF without the actual parental leave entitlement being effective in law.

The minister of employment and labour is ultimately responsible for the implementation of labour legislation in the country, including the BCEA and the Unemployment Insurance Act (UIA).

Olivier points out that the minister has not as yet published the required notice that actually creates the entitlement of such a period of parental or adoption leave in terms of the BCEA into effect.

He explained that the Labour Laws Amendment Act of 2018 (LLAA) introduced new leave entitlements for different categories of working parents into South African law. These include parental leave and adoption leave.

"Despite the LLAA being signed into law last year already, it is yet to come into full operation. Over the course of this year, there have been different provisions of the LLAA that have been announced as coming into effect," said Olivier.

"Importantly, the minister has recently published notices that bring into operation certain amendments under the UIA."

These amendments became effective on November 4, 2019 and it is now possible for qualifying employees to apply for parental leave benefits through the Unemployment Insurance Fund. The fund was established under the amended UIA.

Olivier emphasises, however, that, because the minister is yet to publish the required notice that brings the actual parental leave entitlement under the BCEA into effect, it is "a classic situation of putting the cart before the horse".

"We have no idea when the Department of Employment and Labour are planning to bring to the actual leave entitlements into law. We are continuously monitoring the Government Gazette, but so far no news" said Olivier.

He adds that income replacement benefits under the UIA for other types of leave created by the LLAA, like adoption leave, are not yet legally available.

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