LEGAL OPINION ON THE UNEMPLOYMENT INSURANCE BILL [B3 - 2001]
SOUGHT BY: COMMISSION ON GENDER EQULITY
22 October 2001
INTRODUCTION 1. The Unemployment Insurance Bill1 (the Bill) provides for maternity benefits of up to a maximum
amount of 60% of the applicant's salary. It further provides for a four month maternity leave period
2. The Bill also envisages the dc-linking" of maternity and unemployment benefits. A feature of the
Unemployment Insurance Act, Act no.30 of 1966, is that maternity and unemployment benefits are
"linked", the effect of which is that women who draw maternity benefits use up their unemployment
benefits. There is wide consensus amongst the drafters of the Bill and various commentators on the
Bill that the effect of this provision is discriminatory in it's impact upon working women. Hence the
attempt at reformation in the Bill which disallows the erosion of unemployment benefits when the
applicant woman claims a maternity benefit.
3. Advice is sought regarding the concept of maternity benefits in the Bill, more particularly whether
the percentage of benefit an applicant is entitled to at the time of maternity leave is constitutional and
in line with South Africa's commitments under international law.
4. As argued below, it is clear that the construction of the percentage benefit in the Bill amounts to
unfair discrimination against applicants for maternity benefits on the basis of gender and is therefore
unconstitutional.
DISCRIMINATION 5. International Labour Organisation (ILO) Maternity Protection Convention and
Recommendations:
5.1 ILO Maternity Protection Convention (No 191 of2OOO) conceptualises of a growing need to
provide protection for pregnancy, which is the shared responsibility of government and society.
5.2 In terms of Article 1(2) of the above Convention, the importance of increasing cash benefits to the
full amount of the applicant woman's previous earnings is stressed.
5.3 The above Convention illustrates the latest shift in the conceptualisation of maternity benefits
internationally. Maternity benefits are viewed as distinct in nature, more particularly, in relation to
unemployment benefits. The distinction is in line with the attempt in the Bill to "de-link" maternity and
unemployment benefits. Nontheless, this distinction is not fully realised in the manner conceived in Convention, as the Bill provides for a maximum cash benefit of 60% of salary. This is contrary to the recommendation of providing for the full amount of salary as stressed in the above Convention
5.4 South Africa is signatory to the ILO Conventions. As such, South Africa has incurred certain
obligations in terms of it's stated commitments under International Law. South African policies and
laws must, in terms of these stated obligations conform to the principles set out in the international
instruments. It would appear that the Bill does not live up to the standard articulated in the Convention
as regards the percentage of benefit an applicant woman would receive were the Bill to become law.
6. Convention on the Elimination of All Forms of Discrimination Against Women
(CEDAW)
6.1 South Africa ratified CEDAW in 1995.
6.2 South Africa has, in terms of Article II of the Convention, incurred an obligation to ensure that
women are not discriminated against on the grounds of, inter alia, maternity and pregnancy.
7. Constitution of the Republic of South Africa
7.1 The opinion set out above raises the important consideration of whether the construction of
maternity benefits in the Bill, as a legislative measure about to be embarked upon by the state, is a
reasonable one both in terms of the Constitution and in terms of leading socio-economic rights case
law to date.2
7.2 The Bill fails to effectively "de -link" maternity benefits from unemployment benefits as already
argued above. Maternity benefits are not regarded as distinct in that maternity is viewed as a time of
unemployment. As a consequence the benefit is placed at below normal salary amounts. It can be
convincingly argued that the Bill conceptualises that the costs of reproduction are to be borne by
women alone, rather than recognising the role of the state and society in providing supportive
mechanisms to facilitate the reproductive labour activity of women. This conceptualisation is also
contrary to the principles set out in the ILO and CEDAW Conventions.
7.3 Section 9(3) of the Constitution prohibits unfair discrimination by the state, directly or indirectly
against anyone on one or more grounds, inter alia, gender and pregnancy.
7.4 The provision in the Bill allowing a maximum benefit of 60% of salary may certainly constitute
indirect discrimination on the basis of gender and pregnancy status, as it would appear that the law
would require women to engage in maternity related activities at the cost of their normal salary. This is
further exacerbated by what is clearly women's disadvantaged status in society. This latter premise is
trite and does not require further elaboration.
7.5 The Bill's construction amounts to discrimination which is indirect in nature. Indirect discrimination
occurs where a practice or policy has a disproportionate impact on members of a vulnerable group.
Clearly, the impact on the rights of applicants for maternity benefits would be disproportionately
discriminatory, as only women can ever be eligible for maternity benefits. The Bill thus indirectly
discriminates against women on the basis of gender in that women would be prejudiced in claiming
maternity benefits which are not recognised as deserving of the nature of the benefit in it's own right.
7.6 In the Grootboom matter the Constitutional Court held that in relation to a right which imposes
positive obligations on the state, such as the right to have access to social security3 the key aspect is
whether the legislative and other measures taken by the state are reasonable.
7.7 In terms of section 27 (2) of the Constitution, the state must take reasonable legislative and other
measures to achieve the progressive realisation of the right to social security.
7.8 It could be argued that given the states international obligations relating to maternity benefits, all
women, regardless of whether they are high or low income earners should be entitled to a full salary
once they go on maternity leave.
7.9 However, in terms of Grootboom the state must have a plan which provides for short, medium and
long term needs. In terms of Grootboom, it could be argued that the urgent priority of the state, at
present, is to provide full pay on maternity for low income earners.
8. The opinion is that, in order to achieve the Bill's objective to comprehensively "de-link" maternity
benefits from unemployment benefits and to recognise the fully the responsibilities that are inherent in
maternity leave, the Bill must provide for a full salary component upon maternity. Anything short of
this amounts to unfair discrimination on the basis of gender and will render the Bill unconstitutional.
Footnotes:
1As introduced in the National Assembly and published in Government Gazette
No.21563 of 11 September 2000
2See Government of the Republic of South Africa and Others v Grootboom and Others 2001 (1) SA 46 CC