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Picture: 123RF/Prometeus
Picture: 123RF/Prometeus

As the push for women’s equality grows stronger, why are so many pregnant and nursing employees in SA still facing economic hardship? Section 26 of the Basic Conditions of Employment Act regulates the protection of pregnant and nursing employees for six months after the birth of the child. But in this legislation lie concerning gaps. 

Section 26 mandates that employers may not permit pregnant employees or nursing mothers to perform hazardous work; and during the employee’s pregnancy, and for a period of six months after the birth, the employer must provide an employee suitable alternative work, if the work poses a danger to her health and it is practicable to do so.  

If the employer cannot secure suitable alternative work for a pregnant employee and there is no entitlement to payment in the employee’s contract or the employer’s policy, the pregnant employee could be left without months of income. Women in this situation only become eligible to receive maternity benefits in terms of the Unemployment Insurance Act (read with section 25(7) of the Basic Conditions of Employment Act) when they go on maternity leave. This entitlement lasts for just 17.32 weeks — two months ahead of the six-month protection period.  

This means pregnant employees could be left stranded with no income from the date their work poses a danger to the health of themselves or their unborn child, until they become entitled to a maternity benefit from the Unemployment Insurance Fund (UIF) or their employer's maternity benefits. Similarly, if an employee nurses her child longer than 17.32 weeks after the birth her UIF maternity benefits would be depleted and she would be without income.  

In the last eight years, a number of cases have come before the CCMA and Labour Court where employees have challenged their employers for not providing them with suitable alternative work. However, instead of relying on section 26 of the Basic Conditions of Employment Act directly, the employees have argued that the failure to pay them constituted unfair discrimination on the grounds of their pregnancy.   

When this question came before the Labour Court in the Manyetsa v New Kleinfontein Goldmine case, the late judge Steenkamp ruled that in the circumstances where an employer’s policy was premised on section 26 of the Basic Conditions of Employment Act, their conduct did not amount to unfair discrimination. As a result, the employee’s claim was unsuccessful. However, the court left open the question regarding the constitutionality of the Basic Conditions of Employment Act and the Employment Equity Act, as it was not an issue placed before it. The judge did, however, acknowledge the plight of employees in this situation.  

Notwithstanding great strides made in the protection of pregnant women in the workplace, they nonetheless continue to find themselves in unenviable positions where they suffer economic hardship as a consequence of their temporary condition, which forces them to be off work. As an example, and in extreme cases such as to be discussed in this case, pregnant employees are compelled to take unpaid maternity leave where they work in high-risk areas and where suitable alternative employment cannot be secured for them in the workplace. Effectively, these employees are rendered “unemployed” while still officially employed, until such time that they can claim whatever nominal amounts are claimable under the [UIF], or when they can officially return to work.”

The UIF — a glimmer of hope?  

The UIF’s mandate is to provide social security to vulnerable workers by delivering both financial and social relief to the right person, at the right time, every time. We have seen the fund live up to its mandate on numerous occasion, including during the Covid-19 pandemic and the KwaZulu-Natal unrest in July 2021.  

The UIF has not yet tabled its annual reports for the 2021/22 and 2022/23 financial years, but following the disbursement of R64bn to 5.7-million workers in respect of the Covid-19 Temporary Employer/Employee Relief Scheme (Ters) and R14m in respect of the Workers Affected by Unrest Relief Scheme, in April 2022 the employment and labour minister announced that the UIF was in sound financial health, boasting assets of R124bn as at December 31 2021. 

If every employee that received a maternity/adoption benefit during the 2020/21 financial year was eligible for prebirth benefit for the full 39 weeks of pregnancy, the UIF would have paid about R3bn in prebirth benefits. Naturally, not all employees would be eligible because some received adoption benefits (meaning they were not pregnant), some were not exposed to hazardous conditions, and some of those who were exposed to hazardous conditions were offered suitable alternative employment by their employers, in accordance with section 26 of the Basic Conditions of Employment Act.  

Arguably, the payment of a prebirth benefit to this class of pregnant employees would be affordable, considering the UIF’s assets. At the very least, there is reason to commission an actual valuation to investigate the affordability of a pre- and post-birth benefit. 

A prebirth benefit to pregnant employees would require an amendment to the Unemployment Insurance Act.  This amendment could introduce a new benefit that can be accessed by pregnant employees before taking maternity leave; control measures to avoid abuse and complacent conduct when employers search for suitable alternative work for pregnant or nursing employees (such as the requirement for employers to make a declaration that suitable alternative work is not available; and empowering labour inspectors to conduct investigations and investigations); and penalties or sanctions for false declarations.  

Implementing these amendments could ensure that pregnant and nursing employees do not face financial hardship during this critical life stage. It's time we addressed this glaring oversight in our social security system, in the interest of safeguarding both current and future generations. 

• Shezi is employment executive with ENS Africa.

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