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This newsletter highlights the latest statutory amendments and ancillary developments relevant to the SERR Synergy legal compliance products and services. It aims to keep businesses informed of key regulatory changes to ensure ongoing compliance and mitigate legal risks.

VAN WYK AND OTHERS PARENTAL LEAVE CONSTITUTIONAL COURT CASE
CODE OF GOOD PRACTICE: DISMISSAL

In a Constitutional Court judgement on 3 October 2025, clauses regarding maternity, parental, adoption, commissioning parental leave and surrogacy benefits in the Basic Conditions of Employment Act, 1997 (Act No. 75 of 1997) (BCEA) and Unemployment Insurance Act, 2001 (Act No. 63 of 2001) (UIF Act) were declared constitutionally invalid.

This case stems/originates from a father for whom it was not legislatively possible to be granted more than 10 days’ parental leave, while female employees were entitled to four months’ maternity leave.

This judgement also acknowledges the right to parental leave for all parents in the parental relationship, including adoptive and commissioning parents, in that a party to a parental relationship has assumed parental rights and responsibilities over the child as contemplated in the Children’s Act, 2005 (Act No. 38 of 2005).

Until Parliament introduces remedial legislation, the court provided interim BCEA provisions outlined in the table below illustrating the parties to the parental relationship and the interim leave period accordingly:

Section 25 of the BCEA: Parental Leave

The first notable interim amendment is that the previous maternity and parental leave clauses have been merged to form Parental Leave in terms of section 25 of the BCEA.

Parties to the Parental Relationship	Interim Leave Period
Single parent or the only party in a parental relationship employed	Entitled to a minimum of 4 consecutive months’ unpaid parental leave.
Female employee that is expecting	Commence parental leave at any time from 4 weeks before the expected date of birth of a child unless otherwise agreed to, or on a date certified by a medical practitioner or midwife.
Return of female employees after giving birth	May return to work 6 weeks after the birth of the child; however, can return earlier but it must be cleared by a medical practitioner or midwife.
Employee suffered a miscarriage during third trimester of pregnancy or bears stillborn child	Entitled to unpaid parental leave for 6 weeks after the miscarriage or stillbirth.
Both parties to a parental relationship are employed	Both parents are entitled in aggregate to 4 months and 10 days’ parental leave (i.e. parents have the discretion to decide on how the leave will be divided between them) inclusive of the 4 weeks before birth and 6 weeks after birth.
If both parties take parental leave and the female employee utilised the 4 weeks before giving birth and returned after 6 weeks of giving birth, and if there is any remaining leave	Parties can agree to take the remaining leave in a manner that suits them, including concurrently or consecutively, or partly concurrently and partly consecutively, provided that any such parental leave must be taken by the party concerned in a single sequence of consecutive days.
Disagreement regarding the way in which the remainder of the parental leave will be taken	The remaining leave shall be divided between the parents as close as possible to half of 4 months and 10 days for each parent, provided that such leave is completed within a period of four months from the birth of the child.

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Section 25B of the BCEA: Adoption Leave

Parties to the Parental Relationship	Interim Leave Period
An employee who is an adoptive parent of a child below the age of two years	Entitled to a minimum of 4 consecutive months’ unpaid parental leave from the date the adoption order is granted, or the child is placed in the care of a prospective adoptive parent, pending the finalisation of an adoption order, whichever date occurs first.
An adoption order made in respect of two adoptive parents	Both parties are entitled in the aggregate to 4 months and 10 days’ adoption leave. The adoption leave may be taken by the parties as they may agree, including concurrently or consecutively, or partly concurrently and partly consecutively.
Failure to agree on the way the adoption leave will be taken	Adoption leave shall be apportioned between the parents so that each parent’s total adoption leave is as close as possible to half of 4 months and 10 days, provided that such balance is completed within a period of four months from the adoption of the child.

Section 25C of the BCEA: Commissioning Parental Leave

Parties to the Parental Relationship	Interim Leave Period
A commissioning parent in a surrogate motherhood agreement	Qualify for at least 4 consecutive months’ unpaid parental leave from the date of birth under a surrogate motherhood agreement.
Both commissioning parents	Entitled in the aggregate to 4 months and 10 days’ commissioning parental leave. The commissioning parental leave may be taken by the parties as they may agree, including concurrently or consecutively, or partly concurrently and partly consecutively.
In the event that an agreement cannot be reached on how the commissioning parental leave will be taken	The leave shall be apportioned between the parents so that each parent’s total commissioning parental leave is as close as possible to 4 of four months and 10 days, provided that such balance is completed within a period of four months from the birth of the child.

Unemployment Insurance Fund (UIF) Benefits

The court held that “[e]mployers are not obliged to remunerate employees for their period of absence but it is commonplace for major employers to contract with employees to do so. The employee may claim a financial benefit from the [UIF] in such sums as determined by the Minister”.

The court did not stipulate interim UIF provisions on how the benefits are to be calculated but conceded that the changes to the BCEA clauses will likely affect the UIF Act. For the time being, the UIF financial benefits remain the same and the amendments thereof are left for Parliament to construct in the interim 36 months.

The Labour Relations Act, 1995 (Act No. 66 of 1995) (LRA) and Basic Conditions of Employment Act, 1997 (Act No. 75 of 1997) (BCEA) serve as the legislative basis that governs the employer-employee relationship. National Economic Development and Labour Council (NEDLAC) issues Codes of Good Practice to guide employers, employees, commissioners and other parties within the employment scope to supplement the legislative requirements and obligations that employers and employees must meet. A Code does not alter obligations imposed by employment legislation and/or Collective Agreements nor provide rights to the employer or employee; however, it is a guideline which needs to be considered to ensure dismissals are procedurally and substantively fair.

Two of these Codes were Schedule 8 Code of Good Practice on Dismissal, and the Code of Good Practice Based on Operational Requirements, 1999 which have now been consolidated and replaced with the Code of Good Practice: Dismissal which was published and became effective on 4 September 2025. Mutual respect between employers and employees is reiterated in the new Code as a key principle, meaning that employees need to conduct satisfactory work for a business to which the employer is entitled and that employees should be protected against arbitrary and unfair action.

Small businesses are not defined in the new Code, but it acknowledges resource limitations and provides for the easing of strenuous procedures. It also includes elements such as practical and feasible investigations or procedures for small businesses and less formal approaches to disciplinary action, to ensure procedural and substantive fairness of prospective dismissals.

This Code advises medium and large businesses to implement a Disciplinary Code, detailing the standard of conduct, types of misconduct, progressive disciplinary measures, and offences that may lead to dismissal to ensure that rules and procedures are clear and executed with consistency throughout the company. In the event that an employer deviates from the Disciplinary Code rules or procedures, such deviation must be justified, highlighting the flexibility aspect of this new Code.

A Code of Good Practice does not supersede Collective Agreements; however, it remains important and relevant as it encapsulates the main principles of procedural and substantive fairness of the different forms of dismissals (Grogan J, Workplace Law, 12th edn, 2017). In the absence of a company disciplinary code, a Code can be utilised, and/or an already implemented disciplinary code can be assessed against it for procedural and substantive fairness to seek ways to improve the implemented company disciplinary code (Grogan J, Dismissal, 4th edn 2022).

Exemption Permit Holders

The Minister of Home Affairs extended the validity of both Zimbabwean Exemption Permits (ZEP) and Lesotho Exemption Permits (LEP) until 28 May 2027.

Registration of Trade Unions

The Department of Employment and Labour announced the registration of the following employers’ organisation and trade unions:

Agricultural Allied Industries Association registered as a employers’ organisation, with effect from 7 October 2025;
Alliance for Fearless, Revolutionary, Intersectoral & Casual Employees’ Union as of 15 September 2025; and
All Agricultural and Allied Workers Union of South Africa as of 10 July 2025.

Bargaining Council Collective Agreement Information

Listed below are the Bargaining Council Collective Agreements that have been extended, and/or were extended to Non-Parties:

Bargaining Council Collective Agreements	*Date on which Collective Agreements* were extended to Non-Parties**	*Date on which Collective Agreements* were extended / renewed**
The Agency Shop Fee Collective Agreement period of operation of the Bargaining Council for the Furniture Manufacturing Industry KwaZulu-Natal		10 October 2027
The Main Collective Amending Agreement of the Bargaining Council for the Furniture Manufacturing Industry KwaZulu-Natal	30 June 2027
The Main Collective Agreement of the Bargaining Council for the Furniture Manufacturing Industry of the Cape Provinces	Shall remain in force until the last full pay week of March 2027
The Main Collective Amending Agreement of the Furniture Bargaining Council	30 April 2028
The Wage and Task Grade and Conditions of Employment Collective Agreement’s period of operation of the Bargaining Council for Civil Engineering Industry (BCCEI)	1 September 2025 to 28 February 2026
The Council Levies Collective Amending Agreement of the National Bargaining Council for the Private Security Sector	Shall remain in force until such time as amended, or replaced from time to time
The Main Collective Amending Agreement of the National Bargaining Council for the Private Security Sector	28 February 2027
The Consolidated Main Collective Agreement of the Building Industry Bargaining Council (Cape of Good Hope)	31 October 2028

The extension of the various Bargaining Council Collective Agreements to Non-Parties means that other employers and employees working in the same or a similar industry are also bound by the provisions of the applicable Collective Agreement until the date specified in the Government Gazette.

Bargaining Council developments

The registration of the Regional Bargaining Council for the Contract Cleaning Sector (excluding Kwa-Zulu Natal) as a Bargaining Council was approved on 15 August 2025 and published in Government Gazette No. 53216 dated 22 August 2025.

The Bargaining Council for the Furniture Manufacturing Industry KwaZulu-Natal’s scope was varied as from 9 October 2025 and set out in Government Gazette No. 53574.