A quick guide to leave in the agricultural sector

Parental, adoption and commissioning parental leave came into effect on 1 January 2020 under the Labour Laws Amendment Act, Act 10 of 2018.  Many employers in the agricultural industry however get confused about leave given the pending Constitutional Court case judgement on maternity and paternity leave which may likely introduce changes to these forms of leave in the future.

Parental leave

An employee who is a parent of a child is entitled to at least 10 consecutive days of unpaid parental leave. This leave must commence on the day the employee’s child is born, or in the case of adoption on the date an adoption order is granted or when a child is placed in the care of a prospective adoptive parent by a competent court, pending the finalisation of an adoption order.

Note that currently both male and female employees may qualify for parental leave depending on the circumstances.  If the employee gave birth to the child however, she would not qualify for parental leave but would be entitled to four months’ unpaid maternity leave.

Adoption leave

An employee who is an adoptive parent of a child under the age of two years old is entitled to at least 10 consecutive weeks of adoption leave. Adoption leave may commence on the date an adoption order is granted or the date a competent court places the child in the care of a prospective adoptive parent pending the finalisation of an adoption order, whichever occurs first.

If an adoption order is granted to two adoptive parents, one parent may apply for adoption leave while the other may apply for parental leave. The choice of leave must be decided by the two adoptive parents. Similarly, if a competent court places a child in the care of two prospective adoptive parents pending the finalisation of an adoption order, one prospective parent may apply for adoption leave, and the other may apply for parental leave, with the decision on leave being made at their discretion.

Commissioning parental leave

An employee who is a commissioning parent in a surrogate motherhood agreement is entitled to at least 10 consecutive weeks of commissioning parental leave which may commence on the date the child is born as a result of the surrogate motherhood agreement.

If a surrogate motherhood agreement involves two commissioning parents, one parent may apply for commissioning parental leave, while the other may apply for parental leave. The decision regarding leave allocation must be made at the discretion of the two commissioning parents.

Should employees notify the employer

Yes, employees are required to notify their employer in writing of the date on which their leave will commence and when they will return to work. This notice must be provided at least one month in advance of the expected birthdate of the child, or the date the adoption order is expected to be granted, the placement of the child with a prospective adoptive parent, or the birth of the child under a surrogacy agreement. If notice cannot be provided within the required period, then it must be given as soon as practically and reasonably possible.

Are the abovementioned leave types paid or unpaid?

Currently in terms of labour legislation any parental, adoption or commissioning parental leave taken would be unpaid. The employer is not obliged to remunerate the employee for these leave days, and the employee can submit a claim to the Unemployment Insurance Fund (UIF).

Employers should note that these provisions might change again in the near future pending the decision of a court case that was recently heard in South Africa’s apex court, the Constitutional Court. These leave types as introduced by the Labour Laws Amendment Act are however still currently in force and employers should take note of the leave provisions and requirements to ensure compliance and to support their workforce effectively.

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