Together with civic NGO Sonke Gender Justice, the couple has launched a constitutional challenge against Sections 25 and 26 of the Basic Conditions of Employment Act (BCEA), which deal with maternity leave and family responsibility leave, respectively. The couple argues that both parents should be entitled to the same leave and benefits.
In his affidavit, Werner van Wyk asserted that the current provisions discriminate both against fathers and mothers. Fathers are denied of ample bonding time with their new-borns and unfairly spared from some child-rearing responsibilities, while mothers are forced to solely take on the role of unpaid ‘default parents’.
‘The inequality in providing maternity leave without a corresponding period of paternity leave causes an unjustified limitation on the rights of a father and places an unjustifiable burden on the mother to become the default care-giver. The Act needs to be amended to address the patent and clear imbalance of rights between mothers and fathers,’ said Werner.
Currently, women are allowed to take a four-month maternity leave while men are entitled to a 10-day ‘paternity’ leave – the latter was a recent amendment. The nature of the pay during this leaves is dependent on the organisation.
In the van Wyks’ proposed new law, both biological parents as well as adoptive parents and parents who employ surrogacy are to benefit from the four-month leave and accompanying benefits. Additionally, their application to the Johannesburg High Court seeks an amendment to the BCEA which includes changing the definition of ‘maternity leave’ to ‘parental and care-giving leave’, and an additional perinatal leave for women who do not wish to take the full four months off.
The couple had their son in April last year.
Werner worked for a financial services company while Ika served as the chief executive of two small companies. If Ika had taken the full maternity leave, her businesses likely would not have survived her absence.
Consequently, the couple decided that Werner would be better suited to serve as the primary caregiver for their son, which meant Werner was to apply for the male equivalent of maternity leave. Unfortunately, he was only granted the standard 10-day paternity leave and was denied the longer maternity leave.
The couple then decided on Werner applying for a six-month sabbatical. This comprised a two-month normal paid leave and a four-month unpaid leave. The deal entailed him having to ‘work back’ the four months, a 30% pay of the package to fund obligatory benefit contributions and an inability to accumulate annual leave over that period.
‘Our need to have a parent and primary caregiver for our new-born son prejudiced my working conditions and our financial position in the short term. By comparison, my wife losing her two businesses would have had long-term financial implications,’ said Werner.
According to him, the Bill of Rights prohibited gender-based discrimination and the provisions of BCEA were contradictory to that.
‘There has been an increase in labour participation of women and an increase in the necessity of the involvement of fathers in caregiving and bringing up children. Parents should share responsibilities and mothers should not be burdened with the large volumes of unpaid work in households. The male equivalent of maternity leave will allow for fathers to set the foundation for a more equal distribution of responsibilities in child care,’ he said.
The couple argued that equal leave would be in the best interests of the child as ‘every child has a right to parental care, regardless of the gender, sex or sexual orientation of the caregiver.’
Citing countries such as Spain, Denmark, the UK, Germany, Australia and Sweden, who had recognised that mothers and fathers ‘should be equally responsible for childcare’, they described South Africa’s legislation as ‘delayed in its progression and development of paternity leave’.
Finland has also recently joined the list of progressive nations when it comes to parental leave. Just last month, the European country reformed their family leave legislation to include paid leave of 160 days each to both parents, with the inclusion of a 40-day leave for the final stage of pregnancy. Additionally, one parent can transfer up to 63 days to the other parent. There are a host of other new benefits. The new law took effect this month.
The couple’s attorneys, from Barter McKellar, have issued a notice calling on interested parties to join the application as amicus curiae, since it is concerns a constitutional issue. Thereafter, the minister of labour and employment will file a response.
Meanwhile, their advocate Maud Letzler called the amendments long overdue. According to her, these amendments could go a long way in changing the dynamic of mothers becoming the ‘default parent’ whom their children turn to for everything.
Sources: GroundUp, EyeWitness News