Instrumentos de Evaluación

This thesis aims to determine the adequacy of the current employment rights and protections of South African labour legislation, which aim to provide time off to care. The central premise of this thesis is that the South African labour laws should adequately accommodate the needs of employees with care-giving responsibilities. Therefore, labour legislation should encompass a comprehensive legislative framework of laws regulating the work–care conflict by providing

379 _{International Labour Conference (60th Session) Report VIII: Report on the Declaration on the Equality of}

Opportunity and Treatment for Women Workers (Geneva, 1975) 50 & 57.

380 _{Dancaster & Cohen (note 3 above) 34; Dancaster (note 3 above) 178.} 381 _{Dancaster & Baird (note 3 above) 24; Dancaster (note 3 above) 189.} 382 _{Dancaster & Cohen (note 3 above) 33.}

383 _{Dancaster (note 3 above) 189.}

384 _{Ibid; Dancaster & Cohen (note 3 above) 34; Dancaster & Baird (note 3 above) 39.} 385 _{Dancaster & Cohen (note 3 above) 34.}

386 _Ibid.

employees with rights and protection to time off from work to care. International and regional organisations will be relied on as a benchmark for the minimum labour standards that should be adopted by laws.388 _{These standards prescribe a comprehensive legislative package for the} reconciliation of work and care as a means of ensuring adequate employment protections and anti-discrimination measures. These employment protections promote workplace equality; encourage the participation of men in the reconciliation of work and care; and promote satisfactory social security protection for employees with care-giving responsibilities.389 _For these reasons, international labour standards may be relied on to assess the legislative provisions which reconcile work and care in South Africa.

South African labour legislation currently provides employees with rights of time off to care in the form of maternity leave and family responsibility leave.390 _{These leave entitlements are set} out in the BCEA.391 _{Section 25 of the BCEA provides pregnant employees with four consecutive} months of maternity leave.392 _{Section 27 provides employees with a gender-neutral provision of} family responsibility leave, available for the duration of three days to both men and women for the general purpose of caring for a family member.393 _{By examining the scope, duration,} qualifications, and affordability of maternity leave and family responsibility leave, this thesis will seek to ascertain whether these leave entitlements have limitations in their capacities to accommodate employees with care-giving responsibilities.

The strengths and limitations of the right to maternity leave in South African law will be established through a comparative analysis. The investigation will encompass the scope and coverage of employees to the right to maternity leave. This examination will set out those employees who are included and those who are excluded from the right to maternity leave. The duration of maternity leave and any qualifying requirements for the leave will be analysed. Social security is an essential aspect of maternity protection. Therefore, the right to maternity

388 _{Field, Bagraim & Rycroft (note 2 above) 37; Cohen (note 9 above) 19; Dancaster & Cohen (note 2 above) 2474.} 389 _{Dancaster & Baird (note 3 above) 26; Cohen (note 9 above) 29; Rickard (note 258 above) 1502.}

390 _{Section 25 and s 27 of the BCEA.}

391 _{Dancaster & Baird (note 3 above) 30; Dancaster & Cohen (note 3 above) 33; Field, Bagraim & Rycroft (note 2}

above) 33; Huysamen (note 8 above) 72; Dancaster (note 3 above) 185.

392 _{Section 25 of the BCEA.}

393 _{Dancaster & Baird (note 3 above) 30; Dancaster & Cohen (note 3 above) 33; Field, Bagraim & Rycroft (note 2}

cash benefits offered by the UIA will be considered and critiqued.394 _{The thesis will argue that} statutory rights to maternity leave should offer wide and inclusive protection to employees. The analysis of family responsibility leave will consider the adequacy of the entitlement in light of the failure of South African law to provide a separate leave entitlement applicable to fathers of newborn babies. Essentially, it will question whether the right to family responsibility leave provides fathers with adequate rights to take time off from work to care for their newborn babies.395 _{Therefore, this thesis will seek to ascertain whether South African labour laws should} provide fathers with an exclusive right to time off from work to care for their newborn babies by introducing the right to paternity leave.396 _{Alternatively, this thesis will consider the introduction} of a statutory right to time off from work which may be extended to fathers of newborn babies through a non-transferable right to parental leave.397

Consideration will be had to essential elements of laws aimed at the reconciliation of work and care omitted from South African labour laws, such as rights of paternity leave, parental leave, adoption leave, and leave for care emergencies; as well as the right to request flexible working arrangements. The examination of the failure to provide adoption leave will rely on the concept of equality. Accordingly, if time off from work is afforded to mothers of newborn babies, then adoptive parents should be afforded time off during the period of the placement of the adopted child into a new family environment.398

On account of the current care crisis of South Africa, and the possibilities of unreliable childcare arrangements, this thesis will consider the introduction of parental leave or the right to request flexible working arrangements as a means of accommodating employees with long-term care-

394 _{Bonthuys (note 19 above) 272; Dancaster & Cohen (note 3 above) 34.} 395 _{Behari (note 36 above) 347.}

396 _{Dancaster & Baird (note 3 above) 29–33; Dancaster (note 3 above) 188.}

397 _{Huysamen (note 8 above) 73; J Botes & J Kaplan ‘It’s leave, Jim, but not as we know it: Employment law’ (2015)}

15(6) Without Prejudice 37, 39; N Motsiri & O Timothy ‘Sir, your maternity leave has been granted...’ (2015) 06 HR Future 44, 46; M Finn ‘Fathers still to go: Paternity Leave and the Labour Court’s Judgment in MIA v SITA’ Posted: 06/04/2015 African Legal Centre http://africanlegalcentre.org/2015/04/06/farther-still-to-go-paternity-leave-and- the-labour-courts-judgment-in-mia-v-sita/, accessed on 16 February 2016.

giving responsibilities.399 _{This thesis will consider further whether the care crisis may also be} addressed through separate leave entitlement to provide time off from work to attend to care emergencies.400

This thesis aims to illustrate that the development of a comprehensive legislative package aimed at the reconciliation of work and care requires increased government intervention through a commitment towards the protection of the care-giving responsibilities of employees. This argument relies on the premise which will be exposed by a comparative analysis of salient aspects of the laws of the UK, indicating the extent to which the legislative employment rights and protections to time off from work may be developed through government commitment.401 This premise extends to the consideration of the impact of providing employees with legislative options to tailor their leave entitlements in accordance with their family specifications.402 Ultimately, this thesis will aim to conclude that employees with care-giving responsibilities should be provided with options and choices of leave entitlements which accommodate their individual needs according to duration, affordability, and family structure.403

1.9 Methodology

The methodology of this thesis will be a qualitative and comparative analysis of labour law. The research will not be based on an empirical study. Any data that will be referred to in this research will be discussed as they appear in the literature being surveyed. The methodology will be based on comparative international research focused on the integration of work and family through labour laws.404 _{The research will reflect primary and secondary sources of legal information. It} comprises information from textbooks and journal articles; statutes and bills; international law reports; conference papers; policy documents and considerations; local and international newspapers and magazine articles; and internet sources. These sources of information will

399 _{Dancaster & Baird (note 3 above) 37–38; Dancaster & Cohen (note 14 above) 221; Dancaster & Cohen (note 3}

above) 31; Dancaster (note 3 above) 188; Cohen & Dancaster (note 157 above) 207.

400 _{Dancaster & Baird (note 3 above) 29, 30; Dancaster (note 3 above) 188–189.}

401 _{Lewis & Campbell (note 6 above) 21; Conaghan (note 8 above) 27; Golynker (note 204 above) 378; Caracciolo di}

Torella (note 207 above) 318; Lewis et al (note 207 above) 270; Mitchell (note 207 above) 123; James (note 207 above) 39.

402 _{Mitchell (note 207 above) 132; Lewis & Campbell (note 6 above) 21.} 403 _{Smit (note 58 above) 32; Dancaster (note 3 above) 192.}

provide material on each comparative country, which will be synthesised and compared for the purpose of evaluating the central premise of this thesis.405 _{This thesis will engage in a} comparative analysis of the laws of South Africa and the UK.

The comparative method requires the comparison of selected issues between two or more different legal systems.406 _{The study involves describing each national legal system and finding} commonalities, differences, and specialities between them. Comparative law will illustrate international perspectives on the topic, which may effectively lead to the standardisation of laws internationally or policy considerations on new legal developments.407 _{It is also an effective tool} in finding solutions to legal problems and providing a deeper understanding of the domestic legal system of the research.408 _{A comparative analysis of international laws and standards is vital to} an evaluation of South African law. This resonates from sections 39(1) and section 233 of the Constitution, which compels the consideration of international laws when interpreting the Bill of Rights or any legislation respectively.409

Comparative law is particularly useful in the area of labour law.410 _{This is because it identifies} legal solutions from foreign jurisdictions which can assist the labour markets in less developed countries.411 _{Laws regarding labour relations between employer and employee are capable of} being transferred from one jurisdiction to another as they deal with standards of protection and rules based on substantive terms of employment.412 _{The international standardisation of labour} laws is advantageous to both advanced and underdeveloped countries.413 _{This is particularly so} in a time of economic globalisation, where there is a need to harmonise employment conditions

405 _{TK Hervey Justifications for Sex Discrimination in Employment (1993) 21.} 406 _{Ibid 9.}

407 _{M Martinek ‘Comparative jurisprudence – What good does it do? History, tasks, methods, achievements and}

perspectives of an indispensible discipline of legal research and education’ (2013) 1 TSAR 39, 40–42; Conaghan & Rittich (note 40 above) 7.

408 _{Hervey (note 405 above) 9.}

409 _{Sections 39(1) and 233 of the Constitution; C Botha Statutory interpretation: An Introduction for Students (2012)}

155; Jansen van Rensburg & Olivier (note 287 above) 620–621.

410 _{L Aparicio-Valdez & JB Alvarado ‘The case for comparative and interdisciplinary study of labour relations’ in R}

Blanpain (ed) The Modernization of Labour Law and Industrial Relations in a Comparative Perspective (2009) 29, 29.

411 _{O Khan-Freud ‘On uses and misuses of comparative law’ (1974) 37(1) The Modern Law Review 1.} 412 _Ibid.

413 _{Smit (note 58 above) 15; D Woolfrey ‘Harmonization of Southern Africa’s labour laws in context of regional}

and uphold minimum standards of basic labour rights in order to redress economic imbalances.414

The ILO, as an international organisation, upholds minimum standards of basic labour and has been most successful with its use of comparative labour law.415 _{The objectives of comparative} labour law are firstly to promote social progress and second, to use international conventions to co-ordinate the improvement of work and life conditions.416 _{The ILO does this by setting out} proposed minimum standards of law and policy for member countries to adopt.417 _{In order to do} this, the ILO has to engage in a comparative law methodology.418 _{Comparative law methodology} is therefore useful in identifying legal trends and setting benchmarks for the adoption of minimum labour standards.419

An essential aspect of the comparative method is to consider various socio-political and socio- economic factors in addition to the law as it exists in the respective countries. The economic, social and political factors form the context of the legal systems and lead to a more meaningful comparison.420 _{However, it must be recognised that each nation has a different economic, social} and political system which informs its laws.421 _{The aim is to comprehend how each legal system} measures up against another. Therefore, it is best that the comparative countries have some common ground.422 _{Solutions from one chosen legal system should be capable of being} transferable to the other. In comparative methodology, this is known as ‘transferability’.423 _The idea that the research involved in comparing one legal system to another is based on comparative economic, social and political situations so that the legal solutions of one system can be

414 _{Aparicio-Valdez & Alvarado (note 410 above) 31.} 415 _{Ibid; Rickard (note 285 above) 1505.}

416 _{N Valticos ‘Comparative law and the International Labour Organization’ (1977) 2 Comparative Labour Law 273,}

274; Aparicio-Valdez & Alvarado (note 410 above) 31.

417 _{Woolfrey (note 413 above) 716; Aparicio-Valdez and Alvarado (note 410 above) 31.} 418 _{Valticos (note 416 above) 274.}

419 _{Dancaster & Baird (note 3 above) 23; Rubin (note 152 above) 695.}

420 _{M Salter & J Mason Writing Law Dissertations: An Introduction and Guide to the Conduct of Legal Research}

(2007) 183; Khan-Freud (note 411 above) 27.

421 _{Dancaster & Baird (note 3 above) 23.}

422 _{Salter & Mason (note 420 above) 183; Khan-Freud (note 411 above) 27.} 423 _{Hervey (note 405 above) 11.}

transferred to the other. The degree of transferability will depend on the similarities between the economic, social and political climates of the countries.424

Even if the legal solution cannot be transferred to another national legal system, comparative law is a valuable research method for gaining a deeper understanding of the identified issue within the relevant domestic legal system.425 _{In this thesis, the domestic legal system will be that of} South Africa. Therefore, even if the legal comparisons cannot be reconciled, and the laws are not capable of transferability between national legal systems, the comparative analysis will highlight the methods used by other national legal systems in addressing the issue.426 _{This examination} will be a useful insight into the operation of labour law regulating work–care reconciliation in South Africa.

The thesis will draw from the report of the ILO’s 2014 Maternity and Paternity at Work: Law

and Practice across the World.427 _{The report reviewed the national laws and practices with} regard to maternity and paternity at work in 185 countries.428 _{The comparative content of the} report was divided into five chapters, each focusing on an essential element, or a combination of essential elements identified as necessary for the protection of maternity and paternity at work. Chapter Two of the report examines the basic aspects of maternity leave. These are divided into four parts: the duration of maternity leave; maternity cash benefits; financing of maternity cash benefits; and scope and eligibility requirements.

Chapter Three of the report sets out the aspects of paternity, parental and adoption leave. Chapter Four covers employment protection and non-discrimination. Chapter Five examines health protection at the workplace. Chapter Six focuses on breastfeeding arrangements at work and childcare. In each chapter, the report summarises the provisions of ILO labour standards under each topic. It then compares national legal provisions to the ILO labour standards. Therefore, the labour standards relating to each of the identified elements for work–care reconciliation are

424 _{Ibid 37.} 425 _{Ibid 9.} 426 _{Ibid 18.}

427 _{ILO Maternity & Paternity at Work (note 35 above).} 428 _Ibid.

discussed. Each chapter then incorporates a comparative analysis of the reviewed national legal systems.

The methodology of the ILO report will be followed in this thesis, which will summarise and review the elements of work–care reconciliation for each country. The laws of South Africa and the UK will be examined and discussed individually. Subheadings will indicate the elements of work–care reconciliation for each chapter. As such, a comparative analysis of the commonalities, differences and specialities between each country and against international labour standards will be carried out. Drawing from the comparative analysis, this thesis will make recommendations by identifying more adequate statutory mechanisms that should be adopted to better reconcile the work and care-giving responsibilities of South African employees. The conclusions of this thesis will be based on the findings which will appear from the comparative analysis.