00:00:00
Speaker 1: Let's focus our attention now at nineteen minutes past five on a very very interesting ruling indeed by the Constitutional Court. It deals with parental leave. Now, before biological mothers under the Basic Conditions of Employment Act were granted four months of maternity leave, fathers received ten days of paternity leave. It's changed now according to the Constitutional Court. This was a matter that had been in the High Court two years ago in twenty twenty three, and my understanding of it is that this four months and ten days is available to the parental couple and they can set about allocating it as they please based on whatever their work situations might be. It really is entirely up to them. So let's talk about it then with my guest who was involved in this matter, Laura McFarlane, director at Norton Rose Fulbright and specializing in constitutional and employment law. But McFarland, welcome and thanks very much for your time. First of all, I just want to make sure I've understood the ruling correctly that four months, ten days it's up to the two of you to decide what you do with it. If that is the case, it seems to me to be highly significant.
00:01:20
Speaker 2: Correct, Thanks so much. For having me. That is exactly what the judgment says. One of the implications, it's a huge change in our parental leave law. There's some nuancewers to it. So you absolutely correct, mothers and fathers can share that for months and ten days. Birthing moms would still have the six weeks provision that you can't go back to work unless certified by doctors or are still be the case in this. And there was also significant changes regarding adoptive leave.
00:01:49
Speaker 1: I'll come to the adoptive leave in a moment, but I also seem to hear the judge say something in regard to the father that they would only qualify for this under provisions of the Children's Act. They made a legal commitment to actually being a father, so natural.
00:02:10
Speaker 2: Birth fathers would qualify. The ref to the Children's Act is simply that certain fathers might have relinquished their rights. Other people might have got guardianship and now become a father or adopted a child, and so it's simply a way to delineate the ambit of fathers. But no, it's not a particularly onerous qualification.
00:02:30
Speaker 1: Okay, all right, I thought it was blanket. But you're making very clear talk about the provisions in regard to children who are adopted.
00:02:39
Speaker 2: Sure, so previously adoptive parents and commissioning parents are by Sarahgaci, they would have less leaves than parents who have biological children. Now that has been equalized, so they would have exactly the same the four months two weeks to be able to share between the couple. And the final thing is that the court also declared it unconstitutional that there was no leave previously for parents who adopt child two years and older. The court recognized the child needs time with parents integrate into the family and it's left that part is left to the government to decide how to implement and what the cap will be. But that we expect change and that is well because the court has said it's unconstitutional.
00:03:15
Speaker 1: So what happens next, I mean, is this now the law. Can somebody on Monday go and say this is what I've heard and this is what I want or do we need Parliament to.
00:03:24
Speaker 2: Enact correct, it's now enforceable immediately because it's been decided by the Constitutional Court and they granted into relief. So the court said that these two acts, the Basic Contrition of Employment Act in the UII fact it says that they're unconstitutional, and it said Parliament is thirty six months to fix this defect. But in the interim it's provided largely the relief that our client Commission, Beginner Quality and others.
00:03:46
Speaker 1: Have asked for.
00:03:47
Speaker 2: It's provided that the four months and two weeks for parents is available now. In terms of leave the parents who adopt a child two years and older, that is not available now that's for Parliament to wor work out how they're going to implement it. But the rest of the judgment is available immediately. One thing to note that's not available is UIF benefits. So the court was hesitant to impact the budget without further information, and so they've indicated that while the leave is available immediately and so employees have paid policies might adjust their policies to suit that UIF and how that will change only will see you after Parliament works that out and the process goes through ned Lack. The law has changed, so currently you'll only be available to you only have the UIF benefits that are available prior to this judgment.
00:04:35
Speaker 1: Thank you so much. Laura McFarland, director at the law firm Norton Rose Fulbright. They were involved in that matter that was ruled on today at the Constitutional Court, twenty four minutes past five
Speaker 1: Let's focus our attention now at nineteen minutes past five on a very very interesting ruling indeed by the Constitutional Court. It deals with parental leave. Now, before biological mothers under the Basic Conditions of Employment Act were granted four months of maternity leave, fathers received ten days of paternity leave. It's changed now according to the Constitutional Court. This was a matter that had been in the High Court two years ago in twenty twenty three, and my understanding of it is that this four months and ten days is available to the parental couple and they can set about allocating it as they please based on whatever their work situations might be. It really is entirely up to them. So let's talk about it then with my guest who was involved in this matter, Laura McFarlane, director at Norton Rose Fulbright and specializing in constitutional and employment law. But McFarland, welcome and thanks very much for your time. First of all, I just want to make sure I've understood the ruling correctly that four months, ten days it's up to the two of you to decide what you do with it. If that is the case, it seems to me to be highly significant.
00:01:20
Speaker 2: Correct, Thanks so much. For having me. That is exactly what the judgment says. One of the implications, it's a huge change in our parental leave law. There's some nuancewers to it. So you absolutely correct, mothers and fathers can share that for months and ten days. Birthing moms would still have the six weeks provision that you can't go back to work unless certified by doctors or are still be the case in this. And there was also significant changes regarding adoptive leave.
00:01:49
Speaker 1: I'll come to the adoptive leave in a moment, but I also seem to hear the judge say something in regard to the father that they would only qualify for this under provisions of the Children's Act. They made a legal commitment to actually being a father, so natural.
00:02:10
Speaker 2: Birth fathers would qualify. The ref to the Children's Act is simply that certain fathers might have relinquished their rights. Other people might have got guardianship and now become a father or adopted a child, and so it's simply a way to delineate the ambit of fathers. But no, it's not a particularly onerous qualification.
00:02:30
Speaker 1: Okay, all right, I thought it was blanket. But you're making very clear talk about the provisions in regard to children who are adopted.
00:02:39
Speaker 2: Sure, so previously adoptive parents and commissioning parents are by Sarahgaci, they would have less leaves than parents who have biological children. Now that has been equalized, so they would have exactly the same the four months two weeks to be able to share between the couple. And the final thing is that the court also declared it unconstitutional that there was no leave previously for parents who adopt child two years and older. The court recognized the child needs time with parents integrate into the family and it's left that part is left to the government to decide how to implement and what the cap will be. But that we expect change and that is well because the court has said it's unconstitutional.
00:03:15
Speaker 1: So what happens next, I mean, is this now the law. Can somebody on Monday go and say this is what I've heard and this is what I want or do we need Parliament to.
00:03:24
Speaker 2: Enact correct, it's now enforceable immediately because it's been decided by the Constitutional Court and they granted into relief. So the court said that these two acts, the Basic Contrition of Employment Act in the UII fact it says that they're unconstitutional, and it said Parliament is thirty six months to fix this defect. But in the interim it's provided largely the relief that our client Commission, Beginner Quality and others.
00:03:46
Speaker 1: Have asked for.
00:03:47
Speaker 2: It's provided that the four months and two weeks for parents is available now. In terms of leave the parents who adopt a child two years and older, that is not available now that's for Parliament to wor work out how they're going to implement it. But the rest of the judgment is available immediately. One thing to note that's not available is UIF benefits. So the court was hesitant to impact the budget without further information, and so they've indicated that while the leave is available immediately and so employees have paid policies might adjust their policies to suit that UIF and how that will change only will see you after Parliament works that out and the process goes through ned Lack. The law has changed, so currently you'll only be available to you only have the UIF benefits that are available prior to this judgment.
00:04:35
Speaker 1: Thank you so much. Laura McFarland, director at the law firm Norton Rose Fulbright. They were involved in that matter that was ruled on today at the Constitutional Court, twenty four minutes past five
