My employment contract refers to unpaid maternity leave. Is this legal? Your employer is not legally obliged to continue salary payments during your maternity leave. Therefore, an employment contract referring to unpaid maternity leave is legal. Your employer does, however, have a legal obligation to keep your post available by not replacing you. Note that a temporary employee may fill in for your during your time away.Your employment contract could, however, stipulate favourable maternity benefits including partial/ full maternity leave salaries or a maternity leave period of six months, for example. If this is the case, your employer has to deliver, failing which you may take a copy of the relevant contract to the Department of Labour and/ or you have 90 days to report an unfair labour practice to the CCMA/ relevant Bargaining Counsel for conciliation.
Sometimes an employment contract does not say anything on the topic of maternity leave. This is where the basic/ minimum conditions in terms of the Basic Conditions of Employment Act (BCEA) kick in:
· you may take maternity leave of up to four consecutive months
· your employer does not have to remunerate you during your time out of office
· you may start your maternity leave up to 1 month before your due date, sooner if you have a medical letter confirming that it is unsafe for you to work
· Should you elect not to make use of your maternity leave, you may return to work no sooner than six weeks after delivery. If you had hoped to return sooner, you will need a medical letter declaring that you are fit to start working again.
Should your employment contract stipulate that you only have two months’ maternity leave or set out any other condition that is less favourable than that of the BCEA; this section is void and unenforceable by the employer. Your employment contract may only place you in a better position than the basic minimums. It may not leave you worse off!
How do I survive without my income?
The Unemployment Insurance Fund (UIF) also provides for maternity payments.
When was the last time you studied a copy of your salary slip? Please have a look at the ‘deductions’ section, where you should notice a monthly UIF contribution of 1% of your pay. A further 1% of your pay is not deducted from your salary but paid by your employer. In total SARS/ the UIF therefore receives a 2% contribution of your salary to potentially in future provide you with short-term relief. Your employer has a legal obligation to pay this contribution over to fund/ SARS before the 7th of each month.
Important to remember:
· Commission based earnings have no monthly UIF contributions and therefore commission based earners (unless you also earn a basic), cannot claim UIF;
· You can only claim maternity UIF if you are receiving zero or partial income from your employer during your maternity leave. If you have favourable employee benefits paying you a full salary whilst you are on maternity leave, you will be unable to claim maternity UIF as well.
· You are excluded from claiming UIF if you work for the National Defense Force, SA Secret Service, National Intelligence Agency or for a charity as an unpaid volunteer – as you also then do not make UIF contributions from your salary.
How much UIF can I claim?
This will depend on whether you are receiving partial/ zero income whilst on maternity leave, the size of your salary as well as the total amount of months you have been contributing towards the fund. A rough estimate is that you could receive between 38 – 58% of your monthly salary.
No tax is deducted from maternity UIF and payment is made directly to your personal bank account.
Where do I claim UIF and what forms do I need?
You need to visit the Department of Labour closest to you. This initial application can be made eight weeks prior to your due date or within and no later than 6 months since the birth of your baby.
Remember to take your ID and a medical certificate confirming your pregnancy, alternatively, the baby’s birth certificate with you. You will furthermore need to complete the following forms:
· UI2.3 Application for maternity benefits
· UI2.7 Confirming the remuneration received whilst in employment
· UI2.8 Banking details confirmation
· UI4 Payment continuation document. Once your claim has been approved, this is a document one needs to submit on a monthly basis to request another payment
Hope this helps and congratulations to you and your partner!