Meeting Minimum International and Regional Standards: An Analysis of Maternity Cash Benefits

• Jurisdiction: South Africa
• Pages: 239-260
• Published date: 17 June 2020
• Date: 17 June 2020
• Author: Behari, A.

MEETING MINIMUM INTERNATIONAL AND

REGIONAL STANDARDS: AN ANALYSIS OF

MATERNITY CASH BENEFITS

ASHEELIA BEHARI*

Postdoctoral Fellow, School of Law, University of KwaZulu-Natal

Abstract

This article considers and critiques the right to maternity cash benefits

offered by the UIA through a comparative analysis of the minimum

international standards of the International Labour Organisation

(ILO) and the regional standards set by the Southern African

Development Community (the SADC). Drawing on this comparative

analysis, the article identifies the strengths and shortcomings of the

statutory mechanisms providing for maternity cash benefits for

employees in South Africa.

IINTRODUCTION

Income replacement through cash benef‌its is a signif‌icant element of

maternity protection and assists in the accommodation of pregnancy in

the workplace.

1

The provision of cash benef‌its over the period of

maternity leave ensures that pregnant employees are not left vulnerable

and f‌inancially distressed

2

at a time when they may be burdened by

medical bills if they take leave from work without a guaranteed income

during the antenatal and postnatal periods.

3

Cash benef‌its ensure that

women are not forced to return to work before they are physically and

emotionally ready to leave their new-born babies for fear of f‌inancial

instability during the remainder of their maternity leave.

4

Furthermore,

income replacement helps women overcome the systemic barriers that

arise in the workplace due to the biological difference between men and

*LLB LLM PHD (UKZN).

1

Boswell & Boswell, ‘Motherhood Deterred: Access to Maternity Benef‌its in South Africa’

(2009) 23(82) Agenda 76, 78; ILO ‘Maternity and Paternity at Work: Law and Practice Across

the World’ (ILO 2014) 8.

2

Smit, ‘Maternity’ in Olivier et al (eds), Introduction to Social Security (LexisNexis

Butterworths 2004) 367; ILO, ‘Social Protection for Maternity: Key Policy Trends and

Statistics’ Social Protection Paper 15 (ILO 2015) 1.

3

Smit,(LexisNexis Butterworths 2004) 367.

4

Dupper, ‘Maternity Protection in South Africa: An International and Comparative

Analysis (Part One)’ (2001) 3 Stell LR 421, 425.

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(2019) 31 SA Merc LJ 239

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women in their capacity to bear children.

5

It does this by placing women

employees on an equal economic footing with men when, simply on the

basis of their reproductive capacity, they need time off from work to care

for their new-born babies.

6

Thus, maternity leave coupled with cash

benef‌its reconcile the biological reproductive functions of a woman and

paid employment.

The Basic Conditions of Employment Act 75 of 1997 (the BCEA)

allows four months’ maternity leave and employment security for

pregnant employees.

7

Maternity, as a form of social security, is protected

by the Unemployment Insurance Act 63 of 2001 (the UIA), as amended

by the Unemployment Insurance Amendment Act 10 of 2016 (the

UIAA) and the Labour Laws Amendment Act 10 of 2018 (the LLAA),

which provides for cash benef‌its to qualifying benef‌iciaries.

8

This article considers and critiques the right to maternity cash benef‌its

offered by the UIA through a comparative analysis of the minimum

international standards of the International Labour Organisation (ILO)

and the regional standards set by the Southern African Development

Community (the SADC). Drawing on this comparative analysis, the

article identif‌ies the strengths and shortcomings of the statutory mecha-

nisms providing for maternity cash benef‌its for employees in South

Africa.

II MATERNITY AS A FORM OF SOCIAL SECURITY

While there are various schemes for funding maternity cash benef‌its, the

scheme most relied upon by legal systems is a contributory scheme such

as employment-related social insurance, through which contributions

are received from employees or government subsidies. This contribu-

tory funding scheme is recognised as a form of social security.

9

Social

security provides measures of protection to members of society to

ensure they do not face social and economic distress through insuff‌icient

income resulting from sickness, maternity, employment injury, or old

5

Kentridge, ‘Measure for Measure: Weighing up the Costs of a Feminist Standard of

Equality at Work’ 1994 Acta Juridica 84.

6

Bonthuys, ‘Gender and Work’ in Bonthuys & Albertyn (eds), Gender, Law & Justice (Juta

2007) 254.

7

Section 25(1) of the Basic Conditions of Employment Act 75 of 1997 (BCEA); the Labour

Relations Act 66 of 1995 (LRA).

8

Section 12 of the Unemployment Insurance Act 63 of 2001 (UIA).

9

See ILO (ILO 2014) 20, where the report sets out a discussion on the various forms of

maternity benef‌it schemes across the world, such as employer-f‌inancing schemes and

non-contributory schemes; ILO, (ILO 2015) 1.

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