ATC190213: Report of the Select Committee on Petitions and Executive Undertakings on the Hearing of the Elder Care Leave Petition held on 10 October 2018, at Parliament, as adopted on 13 February 2019

NCOP Petitions and Executive Undertakings

REPORT OF THE SELECT COMMITTEE ON PETITIONS AND EXECUTIVE UNDERTAKINGS ON THE HEARING OF THE ELDER CARE LEAVE PETITION HELD ON 10 OCTOBER 2018, AT PARLIAMENT, AS ADOPTED ON 13 FEBRUARY 2019
 

 

1. BACKGROUND

 

The Select Committee on Petitions and Executive Undertakings (Committee) having considered the Elder Care Leave Petition, received by the Office of the Chairperson of the National Council of Provinces (NCOP) on 6 November 2017 and subsequently referred to the Committee on 7 November 2017, reports as follows:

 

The Elder Care Leave petition (petition), dated 30 July 2018, is submitted to the NCOP by Mr Hendri Petrus Terblanche (Mr Terblanche). In the petition, Mr Terblanche requests the intervention of the NCOP in amending the Basic Conditions of Employment Act (Act 75 of 1997) (Act) to include or provide for elder care leave.

 

Further in the petition Mr Terblanche contends that because the South African legislative framework does not recognise eldercare as a component of family responsibility for which leave, whether paid or unpaid, can be taken in terms of the Act, there are two possible options towards the amendment of the Act in this regard.

 

The first option, he proposes, entails the amendment of section 27(2)(b) of the Act to include “parent, adoptive parent or grandparent” in the family responsibility leave section of the Act, namely section 27(2)(b) of the Act. To be precise, he proposes that section 27(2)(b) be amended by inserting the words “parent, adoptive parent or grandparent” in order for the relevant section to read as follows: “when the employee’s child, parent, adoptive parent or grandparent is sick”.

 

The second option he proposes entails introducing a new form of leave, namely, “Elder Care Leave” which will allow employees to take leave in order to care for an ageing parent who is ill. This will mean amending Chapter 3 of the Act on Leave to provide for a new type of leave called “Elder Care Leave” which will be granted to an employee, on request, during each annual leave cycle as 3 (three) day’s paid leave or 6 (six) weeks’ unpaid leave when an employee’s parent or adoptive parent is sick.

 

Mr Terblanche also asserts, in the petition, that the provision or introduction of elder care leave in legislation has some of the following benefits:

 

1. Improved balance between employees’ responsibilities in the workplace and duty of care towards children and parents;
2. Reduction of work-family conflict;
3. Higher productivity;
4. Lower turnover rates and costs; and
5. Reduction in absenteeism.

 

1. HEARING

 

On 10 October 2018, the Committee held a hearing on the petition at Parliament. The purpose of the hearing was to afford the petitioner and other relevant stakeholders the opportunity to make first hand oral submissions on the subject matter of the petition.

 

1. Committee Members and Officials

 

The hearing on the petition was attended by the following Committee Members:

 

2.1.1     Hon D L Ximbi, ANC, Western Cape (Chairperson of the Committee);

2.1.2     Hon S G Mthethwa, ANC, Kwa-Zulu Natal;

2.1.3                 Hon T Wana, ANC, Eastern Cape;

2.1.4     Hon H E Mateme, ANC, Limpopo;

2.1.5   Hon GG Oliphant, ANC Northern Cape

2.1.6     Hon B Engelbrecht, DA, Gauteng; and

2.1.7     Hon G Michalakis, Free State

 

The following Committee Members tendered apologies for not attending the hearing on the petition:

 

2.1.8     Hon M J Mohapi, ANC, Free State;

2.1.9   Hon S G Mthimunye, ANC, Mpumalanga; and

2.1.10 Hon M Chetty, DA, Free State;

 

The Committee Members present at the hearing on the petition were supported by the following Committee officials:

 

2.1.11   Mr N Mkhize, the Committee Secretary;

2.1.12   Dr M Gondwe, the Committee Content Advisor; and

2.1.13 Adv. T Sterris, Committee Researcher

           

2.2       Stakeholders

 

The hearing on the petition was attended by the following relevant stakeholders:

2.2.1     Petitioner: Mr H P Terblanche;

2.2.2     Representatives of the Department of Labour: Mr V Mafata (Acting Director General); Mr T Mkalipi (Chief Director); Mr G Schneemam (Chief of Staff, Office of the Minister of Labour) and Mr K W Mhloweni (Office of the Director General); and

2.2.3     Representatives of the Centre for Constitutional Rights: Ms C Botha (Legal Officer); Ms P Dube (Director); and Ms R N (Legal Assistant).

 

1. SUBMISSIONS BY THE PETITIONER

 

In his brief submissions to the Committee, the petitioner, Mr Mr H P Terblanche (“Mr Terblanche”), submitted that his proposal to amend the Basic Conditions of Employment Act (Act 75 of 1997) (BCEA) to include “parent, adoptive parent or grandparent” in section 27 (2) (b) of the Act or alternatively to introduce a new form of leave called “Elder Care Leave” has been thoroughly researched and is also backed by a legal opinion from the Centre for the Constitutional Rights.

 

Mr Terblanche further submitted that according to the Vulnerable Groups Series II: The Social Profile of Older Persons, 2011-2015 report published by Statistics South Africa, the major health challenges faced by elderly persons is the increasing prevalence of chronic diseases such as high blood pressure, diabetes and arthritis and more often than not, these chronic diseases require constant long term care.

 

Also according to Mr Terblanche, South African policies and regulations have been developed around the role of the parent as caregiver but not as the receiver of care giving, particularly in the context of section 27 of the BCEA. He indicated that section 27 (2)(b) of the family responsibility leave provision in the BCEA, only acknowledges the employee’s duty of care towards his or her sick child and not the duty of care towards his or her sick parent. He also made the Committee aware that most employees will be ineligible for childcare leave by the time that their parents are at an age when they need more help and assistance and are terminally ill.

 

He further explained that his proposal to amend section 27 (2) (b) of the BCEA, to include “parent, adoptive parents or grandparent” or the provision of standalone “Elder Care Leave” to care for an aging parent (s) who is sick or terminally ill, is more in line with sections 9 (right to equality), 10 (right to dignity) and 23 (right to fair labour practices) of the Bill of Rights, contained in Chapter 2 of the Constitution, than the current legislative provisions for family responsibility leave.

 

In concluding his submissions, he stated it is important to acknowledge and create a balance between an employee’s responsibilities in the work place and an employee’s duty of care towards his or her child(ren) or parent(s) in order to prevent work-family conflict.

 

1. SUBMISSIONS BY THE DEPARMENT OF LABOUR

 

The oral submissions on behalf of the Department of labour were led by the Acting Deputy Director General for Labour Policy and Industrial Relations, Mr T Mkalipi (Mr Mkalipi).

 

In his opening submissions, Mr Mkalipi explained the rationale behind section 27 of the BCEA in its current form. In this respect, he explained that section 27 was introduced after extensive discussions took place. These discussions took into account the case of a nuclear family which administratively is easy to manage in the labour market than an extended family. So, for instance, where a child is sick a parent is entitled to family responsibility leave, however, where a parent or grandparent is sick, there is the possibility of more than one person qualifying for family responsibility leave. The issue at the time was, therefore, how to manage the family responsibility leave provision and ensure that it does not affect the economy negatively.

 

Further in his submissions, Mr Mkalipi further reminded the Committee that the National Economic Development and Labour Council Act (Act 35 of 1994) (“Nedlac”) had to be followed when making changes to labour legislation and as such, all labour law amendments were required to go through Nedlac. He also indicated that the role of Nedlac, in labour amendments of this nature, becomes very critical in ensuring that companies allow family responsibility leave that does not negatively impact the economy.

 

In concluding his submissions Mr Mkalipi indicated that the impact of elder care leave on the economy will need to be looked into in a holistic manner which takes into account the actual costs and unintended costs, and not just the loss of productivity. Mr Mkalipi also assured the Committee that his submissions, in this respect, should not be seen as an indication that the Department of Labour is saying “no” to the proposal in the petition submitted by Mr Terblanche. But that the Department will need to apply its mind and consider other pertinent issues. Also in concluding his submissions, Mr Mkalipi suggested that the Committee consider the wisdom of other departments that the subject matter of the petition has a bearing on such as the Department of Social Development and the Department of Health.

 

5.       SUBMISSIONS BY THE CENTRE FOR CONSTITUTIONAL RIGHTS

 

Ms P Dube (Ms Dube) made submissions to the Committee, on behalf of the Centre for Constitutional Rights (Centre). In her submissions, Ms Dube submitted that there is a legal obligation to recognise the rights of elderly people, especially the right to receive care. She further submitted that based on the research done by the Centre there is a strong imperative to give effect to the amendment of section 27 of BCEA as proposed by Mr Terblanche in the petition.

 

In the course of her oral submissions, Ms Dube also informed the Committee that the research conducted by the Centre looked at what had been done by other jurisdictions in this regard, in particular the Japanese system, which is similar to the South African system in that it makes provision for Unemployment Insurance Fund (UIF) and requires Japanese employees to also subscribe for unemployment insurance whilst on family care leave therefore preventing them from abusing the system. Ms Dube further stated that there is strong legal imperative, in the South African context, to give effect to the proposed amendments not only because of provisions of the Bill of Rights or the existing UIF system, but also because South Africa needs to build on the provisions of the current existing legislation such as the definition of the term “family” in the South African Social Security Agency Act (Act 9 of 2004) (SASSA Act).

 

In concluding her submissions, Ms Dube indicated that in its research, the Centre, has also looked at countries on the continent such as, Angola, Uganda, Rwanda and Kenya and the current status of these aforementioned African countries is that although their governments are not in an economic position to provide for elder care responsibility leave they have instead imposed a tax that has specifically established and caters for a centre to take care of the elderly. The tax allows individuals to pay towards the centre and to leave their elderly parents in the facility to be taken care of.   

    

6.         OBSERVATIONS AND KEY FINDINGS

 

The Committee made the following observations and key findings in relation to the various submissions made in relation to the subject matter of the petition:

 

6.1       In terms of the Vulnerable Groups Series II: The Social Profile of Older Persons, 2011-2015 report published by Statistics South Africa, the major health challenges faced by the elderly is the increasing prevalence of chronic diseases such as high blood pressure, diabetes and arthritis and more often than not, these chronic diseases require constant long term care.

6.2       The proposal to amend section 27 (2) (b) of the BCEA, to include “parent, adoptive parents or grandparent” or to provide for standalone “Elder Care Leave” to care for an aging parent (s) who is sick or terminally ill, will be in line with sections 9, 10 and 23 of the Bill of Rights.

6.3       The National Economic Development and Labour Council Act (Act 35 of 1994) (Nedlac) will have to be followed in relation to all changes to labour legislation and the role of Nedlac in this regard will be to ensure that any changes to the labour legislation do not negatively impact the economy.

6.4       There is strong legal imperative, in the South African context, to give effect to the proposed amendments not only because of provisions of the Bill of Rights or the existing UIF system, but also because South Africa needs to build on the provisions of the existing legislation such as the definition of the term “family” in the South African Social Security Agency Act (Act 9 of 2004) (SASSA Act).

6.5       Although the governments of countries such as, Angola, Uganda, Rwanda and Kenya have indicated that they are not in an economic position to allow for elder care responsibility leave they have instead imposed a tax that specifically caters for the establishment of a centre to take care of the elderly

 

7.         RECOMMENDATIONS

 

Following extensive deliberations on the submissions made during the hearings on the petition, the Committee recommends as follows:

 

7.1        The subject matter of the petition is to be referred to the Portfolio Committee on Labour for its exhaustive consideration and ultimate resolution.

7.2        In its consideration of the subject matter of the petition, the Portfolio Committee on Labour is to solicit the wisdom of other government departments and organisations that the subject matter of the petition has a bearing on, namely, the Departments of Labour, Social Development, Health and Nedlac.

7.3        Further in its consideration of the subject matter of the petition, the Portfolio Committee on Labour is to take into consideration the international best practice on the provision of elder care leave including the approach taken by developing countries like South Africa.

 

Report to be considered