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National minimum wage and parental leave

The National Minimum Wage (NMW) and the Labour Laws Amendment Bill have been signed into law on 23 November 2018.

These laws will bring about some major changes in South African labour law and will have significant consequences for employers and employees alike.

1. The New National Minimum Wage

The National Minimum Wage Act No 9 of 2018 (NMWA) has set the national minimum wage rate at R20 for each ordinary hour worked effective 01 January 2019 for all workers except:

  • farm workers (current minimum wage is R18 per hour which is about 90% of the new minimum and will be phased in);
  • domestic workers (current minimum wage is R15 per hour which is about 75% of the new minimum and will also be phased in);
  • workers employed on an expanded public works programme (current minimum wage is R11 per hour); and
  • workers who have concluded learnership agreements contemplated in the Skills Development Act No. 97 of 1998.
  • Workers in the National Defence Force, the National Intelligence Service, the South African Secret Service, and Volunteers.

The payment of the national minimum wage cannot be waived, and it takes precedence over any contrary provision in any contract, collective agreement, sectoral determination or law, except a law amending the NMWA.

It is important to note that, in terms of section 17(4) of the NMWA, the application of the new minimum wage applies retrospectively as of 1 May 2017. Consequently, employers who have been paying less than the new national minimum wage since 1 May 2017 will be required to back pay their workers. (Note: The enforceability of this provision is questionable, and will no doubt be subject to challenge.)

However, where an employer cannot afford to pay their workers the new national minimum wage and to avoid having to retrench workers, an employer or an employers’ organisation may, in the prescribed manner and form, apply for an exemption.

A National Minimum Wage Commission will also be established. The Commission will be required to conduct annual reviews of the national minimum wage and make recommendations to the Minister of Labour on any annual adjustments.

2. Amendment to the Conditions of Parental Leave

The Labour Law Amendment Bill (LLAB) has amended the Basic Conditions of Employment Act (BCEA)  to provide for parental leave, adoption leave and, in the case of a surrogate motherhood agreement, commissioning parental leave.

  • 10 consecutive days parental leave

Any employee, whether male or female, who is a parent (including adoptive parents), will be entitled to 10 (ten) days consecutive, unpaid, parental leave that may commence on the day the child is born or an adoption, or pending adoption, takes effect.

The entitlement in the BCEA regarding family responsibility leave for the birth of a child has been repealed.

  • 10 consecutive weeks adoption leave

Any employee who is an adoptive parent of a child under the age of 2 (two) years will be entitled to 10 consecutive weeks unpaid leave OR the parental leave referred to above. The adoption leave may commence on the day the adoption order is granted or the child is placed in the care of a prospective adoptive parent by a competent court.

If an adoption order is granted to two adoptive parents, one of the adoptive parents may apply for adoption leave and the other adoptive parent may apply for the parental leave as set out above.

  • 10 consecutive weeks commissioning parental leave

Any employee who is a commissioning parent in a surrogate motherhood agreement will be entitled to 10 (ten) consecutive weeks unpaid leave OR the parental leave referred to above. The adoption leave may commence on the day the child is born as a result of the surrogate motherhood agreement.

If a surrogate motherhood agreement has two commissioning parents, one of the commissioning parents may apply for commissioning parental leave and the other commissioning parent may apply for the parental leave referred to above.

These leave types will be unpaid as unemployment insurance benefits may be claimed for these periods.

The implementation date for these amendments has not been promulgated as yet.

Sources: GoLegal; Neasa

– Wallace Albertyn is a Senior Associate and Labour Law Practitioner at LabourMan Consultants.