Labour Laws Amendment Bill: Department response to submissions

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Employment and Labour

02 November 2016
Chairperson: Ms L Yengeni (ANC)
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Meeting Summary

The Department of Labour (DoL) responded to public comments on the Labour Laws Amendment Bill which is a Private Members’ Bill. The submissions proposed changes to clause 3 which states:

- An employee who is a parent and who is not entitled to maternity leave, is entitled to ten consecutive days’ parental leave when that employee’s child is born or when an adoption order is granted.
- An employee who is an adoptive parent of a child who is younger than two years is entitled to adoption leave of two months and two weeks consecutively. If there are two adoptive parents, one of the employees is entitled to adoption leave and the other employee is entitled to parental leave.
- An employee who is a commissioning parent in a surrogate motherhood agreement is entitled to commissioning parental leave of two months and two weeks consecutively. If there are two commissioning parents, one of the employees is entitled to commissioning parental leave and the other employee is entitled to parental leave.

The DoL noted that Sonke Gender Justice and Mosaic asked if clause 3 referred to working or calendar days; they proposed that section 25(1) of the Basic Conditions of Employment Act (BCEA) be amended to provide six months paid maternity leave for both parents and 10 days pre-natal leave paid. It was of the view that 10 weeks for commissioning parent leave should be increased to six months and be paid 100%.

The DoL stated that clause 3 of the Bill referred to the working days. The proposal to amend section 25(1) of the BCEA was confusing as it did not indicate whether the payment ought to be paid by the employer or Unemployment Insurance Fund (UIF). If it should be paid by UIF then a new actuarial assessment would needed to be made to check affordability. If it should be paid by employers, then the Bill would have to be referred back to Nedlac for consideration because that was not part of the Bill. The section 25(1) proposal was also confusing on whether this also applied to adoptive mothers. Clause 3 may discriminate between biological fathers and adopting fathers who may take the option of 10 weeks leave but biological fathers have 10 days paternity leave. The proposal to increase a commissioning parent’s leave to six months was an affordability matter as well. For the proposal to be considered by the Committee, a new actuarial study would need to be conducted.  

The DoL noted that COSATU proposed that the paid leave for adoptive parents should be increased to four-six months to equal maternity provisions in the BCEA. It further proposed that the adoption benefit should be paid for all cases even for children aged above two years. DoL responded that COSATU had never made that proposal at Nedlac for it to be discussed by all parties there and this would increase the cost to UIF.

The DoL said that Commission for Gender Equality (CGE) proposed an amendment to section 25A(1) and (2)(a)-(b). The CGE’s proposal was confusing in that it suggested that a person could give birth to a child and not be entitled to maternity benefits, which was impossible in terms of the Bill. Finally, the submission from Mr Terblanche was in support of the Bill and so no comment was required from DoL.

The Parliamentary Legal Advisor, in her legal comments on the public submissions, said that Sonke Gender Justice’s had commented that the Bill did not made provision for pre-natal leave. The question of granting pre-natal leave was a policy decision for the Committee to make. However, the policy position of the Member when drafting the Bill was to prevent possible abuse of claims against the UIF. The Member made a requirement that in order to claim from UIF, a biological father must be registered as the father of the child in terms of the Births and Deaths Registration Act; an adoptive parent must be the adoptive parent in the adoption order and the commissioning parent must be the parent in the surrogate motherhood agreement. This is the reason why pre-natal leave was not a consideration in the drafting of the Bill. She noted that this Bill did not intend to amend the provisions that relate to maternity leave. The BCEA currently provided for four consecutive months. This Bill provided for adoption leave and commissioning parental leave of 10 weeks. The Unemployment Insurance Act already set out the formula on the amount of money to be paid.

The Legal Advisor noted that Sonke Gender Justice’s proposal that the term ‘parent’ be defined was unclear on whether it referred to biological parent only or whether it included caregivers, step-parents and legal guardians. The Bill set out who was entitled to parental leave, that is, the father, the adoptive parent and the commissioning parent.

The Legal Advisor said that CGE recommended a revision to the insertion of section 25A(1) and (2). This wording did not make it clear when a person was unable to exercise his/her right to maternity leave and she recommended that the current wording be kept as it is. The proposal to include section 25A(6) was unnecessary as the BCEA did not make provision for the set-off of one leave against another. On the CGE’s proposal to use the term ‘parental responsibility leave’ as a general term to refer to the various categories of leave, the Bill was initially drafted to make it fit within the current labour laws. It was recommended that the current terms such as ‘commissioning parental leave’, ‘parental leave’ and ‘adoptive parental leave’ be kept.

On comments of adoption leave made by both COSATU and Sonke Gender Justice, the Legal Advisor stated that the endorsement of their proposals was a policy decision that the Committee needed to decide on, that is, whether to extend the adoption benefits to a child over the age of two and whether to extend the adoption leave period to four months. On the question of amending the Bill to activate adoption leave from the moment when the legal permanent alternative placement (pending finalisation of adoption order) had been granted, rather than the granting of the adoption order itself, the Legal Advisor stated that she had consulted the Children’s Act of 2005. In the light of the Act, she recommended that the current provision be retained which provided that an employee was only entitled to take adoption leave and draw unemployment insurance once an adoption order was granted.

On commissioning parental leave, Sonke Gender Justice was of the view that 10 weeks of commissioning parental leave provided by the Bill was insufficient. Mr Terblanche submitted that one commissioning parent should get three months and the other get ten parent leave days. The Legal Advisor commented that the rationale for giving ten weeks was that the commissioning parents did not need to recover from giving birth. However, responding to these proposals was a policy decision that the Committee had to take a decision on.

Mr Terblanche also suggested that an employee could get one-day leave for elderly care. This again was a policy decision that the Committee had to take a decision on.

The Legal Advisor provided her proposals to streamline the Bill with the Unemployment Insurance Amendment Bill [B25D-2015] and her proposals affected clause 4 (Right to benefit), clause 5 (Calculation of benefits), clause 9 (Right to maternity benefits), and clause 10 (Application for maternity benefits).

Members agreed that the public submissions had serious financial implications and that the Bill ought to be referred back to Nedlac. They noted that the submissions were delaying the adoption of the Bill and DoL should have prepared responses about the cost implications. DOL should come back to brief the Committee the following week on the questions of feasibility and affordability. Members would also consult their respective political parties on the proposals.

Meeting report

Department of Labour (DoL) response to public comments
Mr Thembinkosi Mkalipi, Chief Director: Labour Relations, DoL, noted that the Parliament received a joint submission from Sonke Gender Justice and Mosiac which asked if clause 3 referred to working or calendar days; proposed that section 25(1) of the Basic Conditions of Employment Act (BCEA) be amended to provide six months paid maternity leave for both parents and 10 days pre-natal leave paid. Further, that 10 weeks for commissioning parent leave should be increased to six months and be paid 100%.

The DoL stated that clause 3 of the Bill referred to the working days. The proposal to amend section 25(1) of the BCEA was confusing as it did not indicate whether the payment ought to be paid by the employer or Unemployment Insurance Fund (UIF). If it should be paid by UIF then a new actuarial assessment would needed to be made to check affordability. If it should be paid by employers, then the Bill would have to be referred back to Nedlac for consideration because that was not part of the Bill. The section 25(1) proposal was also confusing on whether this also applied to adoptive mothers. Clause 3 may discriminate between biological fathers and adopting fathers who may take the option of 10 weeks leave but biological fathers have 10 days paternity leave. The proposal to increase a commissioning parent’s leave to six months was an affordability matter as well. For the proposal to be considered by the Committee, a new actuarial study would need to be conducted. 

Mr Mkalipi noted that COSATU proposed that the weeks paid leave for adoptive parents should be increased to four-six months to equal maternity provisions in the BCEA. It further proposed that the adoption benefit should be paid to all children even those that above two years. He responded that COSATU had never made that proposal at Nedlac for it to be discussed by all parties there and this would increase the cost to UIF.

Mr Mkalipi said that Commission for Gender Equality (CGE) proposed an amendment to section 25A(1) and (2)(a)-(b). The CGE’s proposal was confusing in that it suggested that a person could give birth to a child and not be entitled to maternity benefits, which was impossible in terms of the Bill.

Mr Mkalipi noted that the submission from Mr Terblanche was in support of the Bill as it was therefore there was no comment required from him.

Parliamentary Legal Advisor’s response to public comments
Ms Desiree Swartz, Legal Advisor, Parliament, noted that her presentation addressed comments where there were proposals for amendments or additions to various clauses in the Bill.

Ms Swartz said that Sonke Gender Justice had commented that the Bill did not made provision for pre-natal leave. The question of granting pre-natal leave was a policy decision for the Committee to make. However, the policy position of the Member when drafting the Bill was to prevent possible abuse of claims against the UIF. The Member made a requirement that in order to claim from UIF, a biological father must be registered as the father of the child in terms of the Births and Deaths Registration Act; an adoptive parent must be the adoptive parent in the adoption order and the commissioning parent must be the parent in the surrogate motherhood agreement. This is the reason why pre-natal leave was not a consideration in the drafting of the Bill. She noted that this Bill did not intend to amend the provisions that relate to maternity leave. The BCEA currently provided for four consecutive months. This Bill provided for adoption leave and commissioning parental leave of 10 weeks. The Unemployment Insurance Act already set out the formula on the amount of money to be paid.

Ms Swartz noted that Sonke Gender Justice’s proposal that the term ‘parent’ be defined was unclear on whether it referred to biological parent only or whether it included caregivers, step-parents and legal guardians. The Bill set out who was entitled to parental leave, that is, the father, the adoptive parent and the commissioning parent.

Ms Swartz said that CGE recommended a revision to the insertion of section 25A(1) and (2). This wording did not make it clear when a person was unable to exercise his/her right to maternity leave and she recommended that the current wording be kept as it is. The proposal to include section 25A(6) was unnecessary as the BCEA did not make provision for the set-off of one leave against another. On the CGE’s proposal to use the term ‘parental responsibility leave’ as a general term to refer to the various categories of leave, the Bill was initially drafted to make it fit within the current labour laws. It was recommended that the current terms such as ‘commissioning parental leave’, ‘parental leave’ and ‘adoptive parental leave’ be kept.

On comments of adoption leave made by both COSATU and Sonke Gender Justice, Ms Swartz stated that the endorsement of their proposals was a policy decision that the Committee needed to decide on, that is, whether to extend the adoption benefits to a child over the age of two and whether to extend the adoption leave period to four months. On the question of amending the Bill to activate adoption leave from the moment when the legal permanent alternative placement (pending finalisation of adoption order) had been granted, rather than the granting of the adoption order itself, the Legal Advisor stated that she had consulted the Children’s Act of 2005. In the light of the Act, she recommended that the current provision be retained which provided that an employee was only entitled to take adoption leave and draw unemployment insurance once an adoption order was granted.

On commissioning parental leave, Sonke Gender Justice was of the view that 10 weeks of commissioning parental leave provided by the Bill was insufficient. Mr Terblanche submitted that one commissioning parent should get three months and the other get ten parent leave days. Ms Swartz commented that the rationale for giving ten weeks was that the commissioning parents did not need to recover from giving birth. However, responding to these proposals was a policy decision that the Committee had to take a decision on.

Mr Terblanche also suggested that an employee could get one-day leave for elderly care. This again was a policy decision that the Committee had to take a decision on.

Ms Swartz provided her proposals to streamline the Bill with the Unemployment Insurance Amendment Bill [B25D-2015] and her proposals affected clause 4 (Right to benefit), clause 5 (Calculation of benefits), clause 9 (Right to maternity benefits), and clause 10 (Application for maternity benefits) – see document.

Mr Mkalipi stated that it would be difficult for the DoL to respond to the proposals brought on the table by Ms Swartz; hence they would need to apply its mind to the suggestions.

Discussion
Ms F Loliwe (ANC) welcomed the presentation but she was pessimistic that engagement with those submissions was not going to take Members anywhere. They had various implications, including delaying the Bill.

Mr B Mkongi (ANC) asked which Bill was tabled for discussion. Was it the Unemployment Insurance Amendment Bill or the Private Member’s Bill? He asked for the rationale behind restriction of the adoption benefit to a child below the age of two. Both DoL and Parliamentary Legal Advisor did not mention the reasons provided that prompted the proposals and this made it difficult for Members to support or reject the proposals.

The Chairperson stated that the Committee was not discussing the Private Members’ Bill per se but the public comments on it. In order to give sound legal opinion, their responses touched on various Acts of Parliament.

Mr W Madisha (COPE) asked for clarity about the COSATU’s proposal. He remarked that the proposals were not feasible because it was difficult to incorporate them into the Bill without financial implications. He asked about the Children’s Act. He expressed his concerns about the slow movement of the Bill. 

Mr I Ollis (DA) asked about the procedure for the adoption of the Private Member’s Bill. The Unemployment Insurance Amendment Bill had various implications on the Private Member’s Bill. With regards to procedure, he noted that the Bill was sent to Nedlac before it could be supported by Parliament: Was this the right procedure. Given that there were financial implications, would the Bill be sent back to Nedlac? Was it the final draft under discussion?

Mr M Bagraim (DA) felt that the amended draft of the Bill could not be adopted by the Committee without consulting Nedlac and without consulting their respective political parties. He also felt that the Committee should consider the Bill clause by clause in order to assess the financial implications and to provide further inputs.

The Chairperson stated that Members might have forgotten the processes which the Bill had gone through. The financial implications had been checked, prior to the elections; we asked the Secretary to find out the view of Nedlac on the Bill. All processes had been followed. When Nedlac said yes, the Bill was sent for public comment. Inasmuch as process was concerned, the Bill was on the right track.

Mr Ollis asked whether the Bill was endorsed by Nedlac.

Mr Mkalipi responded that the Bill was sent to Nedlac about consideration of financial matters. However, he could not comment on parliamentary procedure.

Mr M Plouamma (Agang SA) asked what the DoL meant when it stated that  the UIF would not be able to make payment  unless it was funded privately. Was the statement based on the study? If yes, which study was the DoL referring to? He appealed to Members to study the Bill thoroughly to understand its financial implications.

Mr Bagraim asked if it was right time to consult their respective political parties or whether they should wait until a further draft was tabled. Was there any anticipation of receiving more submissions? He remarked that Members seemed to agree that Nedlac should be consulted and that the amended draft should be referred to the Nedlac once again.

Mr Mkalipi remarked that there were no contradictions between his legal position and Legal Advisor’s. The major problem arising from the submissions were the costs that would be incurred. Consideration of the affordability of the costs would take a bit of time because the consideration of costs was not a short process. It was problematic that if one proposes to add something to a Bill, this could come with a cost.

The Chairperson asked about the Bill’s cost assessment.

Mr Mkalipi responded that people who could do cost assessment were actuaries. They were not employees of the DoL. The proposed changes that could be effected would give rise to costs, resulting in sending it back to Nedlac for approval.

Mr Plouamma asked if any work was done to assess the financial implications of the proposals in the submissions. He was of the view that Members should dismiss these proposals if they came with large financial implications.

Mr Thobile Lamati, Director-General of Labour, explained that the DoL conducted its own review of the cost that could be involved. It did not want to increase the amount paid on leave beyond 2%. Should it go beyond 2%, the Bill should be referred back to Nedlac.

The Chairperson stated that it appeared that the Bill will not be finalised in 2016; hence the Nedlac report would provide Members with direction. This, however, did not stop Members from consulting their political parties.

Ms Loliwe remarked that the Bill was initially not cost effective and any further financial implications would not be cost effective.

Mr Mkongi seconded Ms Loliwe. He was concerned about implications of the proposals and was of the view that it was imperative to consult their political parties to state the party position on these.

The Chairperson agreed. There was nothing members could do about the cost but they could still discuss other matters.

Ms C Dudley (ACDP) said that it would be difficult to go back to parties and discuss the Bill without a clear stance. Members would not be able to answer the questions that arise.

Mr Madisha said that this briefing was nothing but a waste of money and time. The DoL delegation could not come to brief the Committee if they knew that there were still outstanding matters on which no clear responses could be provided. The DoL should take into consideration that ordinary people had a great deal of expectations for the Committee to deliver but nothing tangible was being done to facilitate the Committee to craft the law. He was not happy with that kind of weakness from DoL. The DoL was talking about actuaries and agreements but without good results. Such briefings could not be entertained.

The Chairperson stated that Members did not understand where the problem was. The initiator of the Bill talked about maternity leave and the payment of it but these submissions talked about new things. The DoL had done a lot to ensure that the Bill was adopted; however, Members should consider whether these public comments could be incorporated in the Bill.

Ms Dudley remarked that no one disagreed with the proposals and submissions. Initiators of the Bill knew that there was no money and chose to take a conservative approach. Workers were behind the conservative approach. On the other hand, COSATU came up with a wish list on how the Bill could deal with these matters.

Mr Mkongi stated that what was problematic were the technicalities of the financial implications of the proposals.

Mr Plouamma referred to COSATU’s wish list and thought that the matter was clear as it stood. The Committee should move on and consider the Bill, without accommodating further financial problems.

The Chairperson stated that the DOL should come back to brief the Committee the following week on the questions of feasibility and affordability.

The DOL stated that it would do so.

Committee business
Minutes of 19, 26 and 27 October 2016 were considered and adopted without amendment.

The meeting was adjourned.

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