Sections of the Basic Conditions of Employment and the Unemployment Insurance Fund acts declared unconstitutional.
Sections of the Basic Conditions of Employment Act and the Unemployment Insurance Fund Act have been declared unconstitutional because, when it comes to “maternity leave”, they unfairly discriminate against mothers and fathers, surrogate parents, and those who adopt children.
Read the judgment here The matter was brought to court by a Polokwane couple, Werner and Ika van Wyk, Sonke Gender Justice, and the Commission for Gender Equality, with several other organisations acting as amicus curiae.The sole respondent was the minister of labour, the custodian of the BCEA.The contested sections are in Chapter 3 of the BCEA, which regulates the minimum leave that an employer must grant to employees who become parents.
He said the applicants argued that this was unconstitutional in that it was unfair discrimination and violated the dignity of all parents. The National Employment Association of South Africa also opposed the relief sought as being “bad for business” and best left to parliament.He said, save for breastfeeding, both parents were able to provide comprehensive care to their child, and it was not cogent to contend that the BCEA does not discriminate on the grounds of gender.
Judge Sutherland said to accord a “paltry” 10 days leave to a father “speaks to a mindset that regards the father’s involvement in early parenting as marginal”.
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