CONSTITUTIONAL COURT JUDGMENT ON PARENTAL LEAVE

We previously reported that the Constitutional Court had been tasked with determining whether certain provisions of the BCEA and the UIF Act were unconstitutional. On 3 October 2025 the Constitutional Court delivered its ruling, declaring the provisions unconstitutional and unfairly discriminate against fathers, commissioning parents and adoptive parents. Parliament has been prescribed 3 years in which to amend current legislation and remove the discriminatory clauses.

In the meanwhile, the Court has declared the following with regards to parental leave:

• An employee who is a single parent, or the only parent in a parental relationship is entitled to at least 4 consecutive months of parental leave;
• The above leave may be taken from the date that the child is born;
• A female employee, expecting a child may commence parental leave at least 4 weeks from the expected date of birth, or a date determined by a medical practitioner;
• A female employee may not return to work for at least 6 weeks after giving birth, unless certified fit to do so by a medical practitioner;
• Where both parents to a parental relationship are employed, the parties are entitled to an aggregate of 4 months and 10 days leave;
• Employed parties to a parental relationship, may choose to take the 4 months and 10 days leave concurrently, or consecutively or in any manner they may chose;
• Where parties cannot agree on the manner in which the parental leave is taken, then the parental leave will be apportioned equally amongst them; and
• A party is deemed to be a party to a parental relationship if the party has assumed parental rights and responsibilities over the child;

On the issue of leave for adoptive parents, the Court ruled:

• An employee who is an adoptive parent of a child less than 2 years old is entitled to 4 months parental leave; and
• The same provisions apply, in that parties in a parental relationship, are entitled to an aggregate of 4 months and 10 days leave, to be shared amongst them.

Where parents are in a surrogacy agreement, the Court ruled  that:

• The commissioning parent (did not give birth), is entitled to 4 months parental leave; and
• The same provisions apply to commissioning parents in a parental relationship. The parties are entitled to an aggregate of 4 months and 10 days leave, shared amongst them.

The Court acknowledged that it did not have sufficient information regarding payment of Unemployment Insurance to make a declaration. It instead directed the Minister of Employment and Labour to draft fair and non-discriminatory provisions on the payment of UIF.  Within our industry, scheduled employees (also some non-scheduled) are covered by the Sick Pay Fund. Up until the trustees of the Fund make a declaration on parental leave benefits, the current status quo remains.

Employers are encouraged to review their policies to align with the amendment, as this Court decision is with immediate effect. Companies facing applications for parental leave are entitled to request employees to present proof of parental rights and responsibilities. The parental leave must be taken consecutively. Employment contracts must reflect the changes to parental leave.

In terms of the industry collective agreement, these changes can only be effected upon agreement by the parties. The current Main Agreement expires on 30 June 2027. It is envisaged that parental leave provisions will be included in the demands during these negotiations. Up until negotiations are finalised, employees are entitled to parental leave as per the Constitutional Court judgement. However, insofar as the calculation of shifts and payment for absences from work, particularly with respect to fathers, this remains as currently provided for in the Main Agreement.

Vuyiswa Miya-Mokwana
IR Executive