Balancing the Scales of “Parenting”: Equal parental leave for all parents

Introduction
Parental involvement in early child development is crucial. This article examines the judgment of Werner Van Wyk & Others v Minister of Employment and Labour & Others, exploring issues related to parental leave under The Basic Conditions of Employment Act (BCEA), the Unemployment Insurance Act (UIF), and the Constitution of the Republic of South Africa.

Previous position
Before the Werner Van Wyk & Others v Minister of Employment and Labour & Others decision, the law had different rules for parental leave:

i) Mothers could take four months off for maternity leave, starting up to one month before the baby was due. They could get money each month from the UIF during this time.

ii) Fathers could take only ten days off when their child was born.
These rules applied the same way to parents in same-sex relationships.
The leave periods mentioned above apply to children conceived naturally by heterosexual parents, as well as to adopted children and children conceived through surrogacy. The purpose of these provisions in the Basic Conditions of Employment Act (BCEA) that mandate such leave is to ensure that the employee has adequate time for recovery, to care for the child, and to have job security upon returning to work.

Primary claim by the applicants
Deputy Judge President Sutherland explained that the law was unfair because it treated parents differently, giving them unequal leave. He said all parents should get the same amount of leave, and not doing this is wrong and violates the dignity of all parents. This idea is important not only for treating parents fairly but also for making sure children get equal care from both parents. It also helps in making sure no parent’s role is seen as less important than the other, recognizing both parents equally.

Differentiation and discrimination

The law gives different amounts of leave to three categories of parents: birth parents, adoptive parents, and surrogate parents. This difference in treatment is seen as unfair discrimination and disrespects all parents. Such discrimination goes against what sections 9 and 10 of the Constitution aim to protect. The argument made by those challenging the law is that all types of parents should have the same length of leave. When there is a difference in how people are treated under the law, it is necessary to check if this difference is actually discrimination. To do this, the Harksen v Lane Test is used to examine whether the differentiation unfairly discriminates against certain groups of parents.

The current approach of the Basic Conditions of Employment Act (BCEA) is debated because it assumes one parent is the main caregiver while the other plays a lesser role. In heterosexual relationships, the birth mother is given four months of maternity leave, while the father gets only 10 days. In surrogate parenting, the genetic mother gets 10 weeks, six weeks less than the birth mother. This difference is explained by the idea that the non-birthing parent does not need as much leave since they do not go through physical recovery. However, this reasoning does not apply to adoptive parents since neither parent experiences physical recovery.

The approach criticized by the judge is considered outdated in today’s diverse society where various types of relationships and parenting exist. This approach is seen as exclusive and does not align with the inclusive principles of the Constitution. In families with dynamic parenting roles, where both parents contribute equally to nurturing the child, the current laws fail to recognize them. This makes the legislation seem outdated and contrary to moral principles. While the Basic Conditions of Employment Act (BCEA) primarily focuses on setting minimum employment benefits rather than regulating family life, it still needs to be compatible with the Children’s Act and aligned with the Constitution at the same time.

Judge Sutherland questions the fairness of treating fathers differently, considering the potential inconsistency in relationships between parents and the level of involvement of the father with both the mother and the child. This differentiation, as seen in the Basic Conditions of Employment Act (BCEA), contradicts the goals of sections 9 and 10 of the Constitution and goes against the principles of the Children’s Act.

The birth mother has 6 weeks more leave than the 10 weeks allocated for the commissioning and adoptive parents, 16 weeks in total due to the need to recover. What is undisputed is that all parents have an equal and parallel role in their responsibility to nurture for the child(ren).
The court argues that the reasoning behind giving birth mothers more leave lacks a valid basis and does not make sense legally or practically. This unequal treatment amounts to unfair discrimination. The judge emphasizes that mothers in all three categories of children should be entitled to the same leave period for nurturing purposes, as mandated by section 9 of the Constitution, which aims to prevent inequality.

The judge strongly criticizes the provision of only 10 days’ leave for fathers, suggesting that it reflects a mindset that undermines the importance of a father’s role in early child development and diminishes it to a minimal level. This perspective is offensive and violates the father’s dignity, especially when viewed in light of constitutional principles. The fact that fathers are not entitled to any UIF payout further violates the constitutional principle of equality under section 9.
The judge dismisses the arguments made by the respondents as weak. He emphasizes that if a law is unconstitutional, it must be declared as such immediately to prevent harm. He asserts that achieving equal treatment for everyone, as required for constitutional compliance, is feasible.

Conclusion

The Constitution aims to achieve social equality between men and women, and it is uncompromising in realizing this mission for everyone. The provisions in the Basic Conditions of Employment Act (BCEA), as interpreted in the judgment, are therefore considered to violate sections 9 and 10 of the Constitution.

Dr. Martin Luther King Jr. made a powerful statement in April 1968 regarding injunctions and the fight against unconstitutional restrictions. He urged America to uphold the principles outlined in its foundational documents.

King emphasized the importance of fundamental rights that define the greatness of America.
The Constitution of the Republic of South Africa is celebrated as one of the world’s greatest constitutional documents. If we are to realize the vision embodied in it, we must heed the example set forth by Dr. King and challenge any injunctions, no matter how seemingly insignificant or nuanced, that obstruct the path to a truly transformative and equal society as outlined in our founding document. As the wise saying goes, “An unjust law is no law at all.”