Constitution of the Republic of South Africa, 1996
Unemployment Insurance Act 63 of 2001
The Parliamentary Legal Advisor took Members through the latest amendments that had been proposed to the Labour Laws Amendment Bill (the Bill) in accordance with what had been discussed and agreed on in previous meetings. Members were asked to check throughout whether clauses were amended in accordance with their inputs.
The Parliamentary Legal Advisor noted that the numbering of the Bill had changed, as it was no longer being put through as a Private Members Bill, so that although originally numbered PMB 5 – 2015, it was now numbered B24-2016. Other amendments were being made to bring it in line with the usual style before being submitted to the National Assembly for approval as a Bill to be introduced as a Committee Bill.
She firstly dealt with the discussion around adoption benefits to be provided when a child was placed with adoptive parents. The Department of Labour (DoL) agreed that the adoption benefits would be accessed when the child placed in the care of adoptive parents, in accordance with a court order. These terms were as defined in the Children's Act. A new section 25(6A) stated that “An employer may not set off maternity leave against any other leave entitlement under this Chapter.” Members discussed the term “set off” and decided that it was not appropriate and would be removed. A new wording for section 13 was being inserted, by clause 9. This stated that a contributor’s entitlement to benefit accrued at a rate of one day’s benefit for every completed five days (instead of six) of employment as a contributor subject to a maximum accrual of 365 days (instead of 238 days) benefit in the four year period immediately preceding the day after the date of ending the period of employment. Again, it was stated that the days of benefit could not be reduced by payment of parental commissioning parental and adoption benefits, which would be paid at a rate of 66% of the earnings of the beneficiary. The revised section 26A, noted in clause 10, said that a contributor was entitled to the parental benefits if the application was made in accordance with the prescribed requirements. Entitlement commenced on the date of childbirth or on the date the competent court granted the adoption order or on the date that a child was placed in the care of prospective adoptive parents. The revised 26B dealt with parental benefits on adoption, and noted that the application should be made within 12 months (and not six months) after the date of childbirth or on the date the competent court granted the adoption order or on the date that a child was placed in the care of prospective adoptive parents, pending the finalisation of an adoption order, whichever occurred first.
Members questioned the difference between these time frames and the legal advisors clarified that an adoption order would be one as defined in the Children's Act, but a child could be placed in the care of prospective adoptive parents pending an adoption order. A prospective adoptive parent meant a person who complied with the requirements set out in section 231(2) of the Children’s Act. The DoL thought that emphasis must be placed on the court order stage, but it was agreed that using the term “placement order” would be too wide, because it could include a child in need of temporary care.
Notification in terms of section 25A(4) must be given at least one month before the employee’s child was to be born. Payment of parental benefits for an adoptive child must be made within twelve months. Commissioning parental benefits were also discussed, which would be used when a child had been born as a result of a surrogate motherhood agreement, and these would commence on date of childbirth. Applicants must be advised if their applications did not meet the requirements. Members sought clarity on how family responsibility leave might impact on adoption leave and what financial implications these amendments brought. They were happy with the final version of the Bill and urged that it be tabled in the National Assembly before the end of the term for approval, so that it could then be returned to the Committee for a clause by clause consideration.
Members adopted the minutes of the meeting on 23 November 2016.
Labour Laws Amendment Bill [B5-2015] – now [B24-2016]: Deliberations
The Chairperson said that Members would consider the latest changes now made to the Labour Laws Amendment Bill (the Bill) in accordance with what Members had agreed on in previous meetings. She asked that all check whether they felt that the clauses were amended in accordance with their inputs or whether clauses should be reworded or rephrased. The changes that were effected were marked in red colour whereas those inserted were highlighted, on the copies before Members. She noted that the legal advisors would be reading those clauses and clause by clause consideration would happen after the amendments proposed were incorporated on the agreement of Members.
Ms Desiree Swartz, Parliamentary Legal Advisor, noted that she had been asked to incorporate these amendments into the Bill. She firstly pointed out that the number had changed from [PMB 5 – 2015] to [B24-2016]. The Bill had needed to be redrafted in a clear and correct format for it to be introduced in the National Assembly for consideration. The Bill that would be tabled would be the one redrafted and approved by this Committee, including the line numbers on the side of the margins.
She noted that in a previous meeting there was a discussion about adoption benefits to be provided when a child was placed with adoptive parents. She had a discussion with the Department of Labour (DoL or the Department) and all agreed that the adoption benefits would be accessed when the child was placed. She noted that when a term was used repeatedly, such term should be defined. Terms such as “adoptive parent”, “adoptive order”, and “prospective adoptive parents” would be defined by reference to the Children’s Act, 2005.
New section 25(6A)
Ms Swartz noted that section 25 of the Basic Conditions of Employment Act was amended by inserting a subsection 6A which read as follows: “An employer may not set off maternity leave against any other leave entitlement under this Chapter.”
Ms F Loliwe (ANC) said that that was what Members had agreed on.
Mr M Bagraim (DA) sought clarity on the verb “set-off “and remarked that an employer could not “set off”.
Ms Swartz responded that this meant that nothing could be deducted from other leave entitlements such as annual leave or sick leave.
Mr Bagraim proposed that the verb “set off “should be deleted.
Members agreed; the clause was correct in principle but “set off” would be deleted from sections .25(6A), 25B(8) and 25(C)(7).
Mr I Ollis (DA) said that there was a need to clarify how the adoption leave would have impact on family responsibility leave, or how those two types of leave could be interchanged.
Ms Swartz noted that parental, commissioning parental and adoption benefits would be paid at a rate of 66% of the earnings of the beneficiary.
Ms Loliwe said that amendments were in line with the discussion.
Mr Bagraim added that 66% referred to the maximum threshold pay scale.
Clause 9: Amendment of section 13 of UIF Act
Mr Swartz noted the new amendment of section 13 of the Unemployment Insurance Act UIF Act) . It was contained in clause 9 of the Bill. A contributor’s entitlement to benefit accrued at a rate of one day’s benefit for every completed five days (instead of six) of employment as a contributor, subject to a maximum accrual of 365 days (instead of 238 days) benefit in the four year period immediately preceding the day after the date of ending the period of employment.
Ms Swartz noted that the unemployed benefits should be paid to the unemployed contributor regardless of whether or not the contributor had credits and the days of benefits that a contributor was entitled to could not be reduced by the payment of parental, commissioning parental and adoption benefits.
Members indicated that they were happy to adopt this amendment.
Clause 10: Section 26A
Ms Swartz noted that in terms of section 26A, a contributor was entitled to the parental benefits if the application was made in accordance with the prescribed requirements. The entitlement commenced on the date of childbirth, or on the date the competent court granted the adoption order, or on the date that a child was placed in the care of prospective adoptive parents. These amendments were reflected in clause 10.
Members were happy with this amendment.
This related to the application for parental benefits. Ms Swartz noted that in terms of section 26B the application must be made within 12 months (and not six months) after the date of childbirth or on the date the competent court granted the adoption order or on the date that a child was placed in the care of prospective adoptive parents, pending the finalisation of an adoption order in respect of that child, whichever occurred first.
Members were happy with this amendment.
The Chairperson stated that Members should be concerned with checking whether amended clauses reflected their resolutions taken in the previous meetings. She advised Ms Swartz to ensure that the Labour Bill was sent to the DoL for it to check also, on the issue of affordability, even though amendments were made in consultation with the DoL.
Mr Bagraim noted his appreciation for Ms Swartz’ work and remarked that the Labour Bill reflected Members’ discussions.
Mr Zolani Sakasa, Committee Secretary, read a letter from the DoL in which the DoL said that the amendments that were effected had no administrative challenge, rather financial implications. Such implications included an increase in the benefits claims.
Mr Ollis noted that there was a question of when adoption benefits could commence. He supported the DoL position that said that the adoption benefits would kick in when a court order was granted. He sought clarity on whether an adoption order and court order meant the same thing.
Ms Swartz stated that the adoption order could be obtained through a court order. She noted that “adoption order” meant an adoption order as envisaged in the Children’s Act and said that a child could be placed in the care of prospective adoptive parents pending the granting of the official adoption order. By definition, a “prospective adoptive parent” meant a person who complied with the requirements set out in section 231(2) of the Children’s Act.
Mr Bagraim remarked that the placement of adopted child in the care of a prospective parent was subject to a court order.
Mr Ollis noted that the DoL had advised Members that the emphasis should be placed on the court order stage. He sought clarity on whether the phrase “placement order” should substitute the “adoption order”.
Ms Loliwe did not see any difference between a “placement order” and “adoptive order”.
Ms Swartz said that the placement order wording was too wide because it included those children who might be in the greatest need of safety and who were temporarily placed while a court order was sought to place them in a shelter or in the care of someone.
Members agreed with Ms Swartz.
Ms Swartz, referring to parental leave, noted that a notification in terms of 25A(4) must be given at least one month before the employee’s child was to be born.
Members agreed with this.
Ms Swartz, referring to payment of parental benefits, noted that the child had been adopted in terms of the Children’s Act, 2005, or placed in the care of a prospective adoptive parent by a competent court, pending the finalisation of an adoption order in respect of that child. The application must be made within 12 months as noted above.
Ms Swartz noted the right to commissioning parental benefits. The right arose when the child had been born as a result of a surrogate motherhood agreement, or the period that the contributor was not working was spent caring for the child, or the application was made in accordance with the prescribed requirements. The entitlement to the commissioning parental benefits commenced on the date of childbirth.
Mr Swartz noted that an application for commissioning parental benefits ought to be made in the prescribed form at an employment office and it ought to be made within 12 months. The claims officer must investigate the application. If the application did not meet the requirements, the applicant should be advised that the application was defective.
Members agreed with this wording.
The Chairperson thanked Ms Swartz for her briefing and sought clarity on whether a person who was not granted permission to adopt a child could apply to adopt another child. She was aware that the adoption processes might take three years. The processes included assessment of the prospective adoptive parents. She asked whether a person whose application to adopt a child was turned down should be able to file another application upon rejection of his or her application, and how long might it take to re-apply.
Ms Ollis remarked that the application was cumbersome, and involved not only an individual assessment but also a court order.
The Chairperson sought clarity on whether a re-application for adoption had financial implications. She remarked that an individual who applied for adoption was, in principle, a prospective adoptive parent. She asked whether or not that person could be adoption leave. She asked what would be done if his or her application was rejected; could adoption benefits be granted.
Ms Swartz noted that when a person lodged an adoption application, s/he could be classified as prospective adoptive parent, but the adoption benefits would be granted upon receiving an adoption order.
Ms Swartz reminded Members that highlighted sections were not part of the amendments as debated on by Members. They were new insertions. A report was drafted giving clarity why the new insertions were crucial. The Committee had to approve them, before they could be recognised as included amongst the amendments. The Committee still had to consider the Bill, clause by clause, in order to have a final draft of the Bill, as the B24-2016 Bill. However, until that Bill was approved by the National Assembly, the Committee would not be able to do the final consideration.
Mr Sakasa read the report that would be sent to National Assembly, noting the submission of the Bill.
Mr Ollis seconded the report. He requested that the Chairperson engage with the Chief Whip to make sure that the Bill was tabled before the National Assembly before Parliament closed its business for festive season. If the Bill could go through, Members could take leave over the festive season knowing that they accomplished something in 2016.
The Chairperson agreed. She stated that Ms Swartz would no longer be working with the Committee, but introduced Mr Michael Prins, who was present at the meeting.
Members paid farewell to Ms Swartz, and wished her all the best in her new endeavours. They appreciated her commitment and dedication, in particular, the patience that she had shown during this work.
Consideration and adoption of minutes
The Committee minutes of 23 November 2016 we reconsidered and adopted without further amendment.
The meeting was adjourned.