On 26 February 2026, the Minister of Employment and Labour published two Draft Bills in the Government Gazette that together represent the most sweeping reform of South Africa's labour legislation in years. The Draft Employment Laws Amendment Bill, 2025 (ELA Bill) and the Draft Labour Relations Amendment Bill, 2025 (LRA Bill) touch every corner of the employment relationship, from how work is offered on a day-to-day basis, to what it costs to retrench, to who qualifies as an employee in the first place.
The Bills amend five statutes: the Basic Conditions of Employment Act, 1997 (BCEA), the Employment Equity Act, 1998 (EEA), the Unemployment Insurance Act, 2001 (UIA), the National Minimum Wage Act, 2018 (NMWA), and the Labour Relations Act, 1995 (LRA). The first opportunity for public comment closed on 28 March 2026, though the Bills must still be formally introduced to Parliament, where further public participation will follow. What follows is a focused analysis of the most important changes that employers across all sectors need to understand and act upon.
Parental leave
This is arguably the change with the most immediate and widespread operational impact. The Constitutional Court ruled that the existing maternity and parental leave provisions in the BCEA unconstitutionally discriminate between different classes of parents on the basis of the length of leave available. Parliament was given 36 months to remedy the defects, and the ELA Bill is the legislature's response.
The proposed new framework replaces the current fragmented regime with the following structure:
- A single parent, or the only employed person in a parental relationship, is entitled to at least four consecutive months' parental leave.
- Where both parties to a parental relationship are employed, they share an aggregate entitlement of four months and ten days, which may be taken concurrently, consecutively, or in a combination of both, but neither parent may individually take more than four months.
- Adoption-related leave is extended to cover children up to six years of age (previously limited to under two years of age).
- The amendments have also expanded to cover adoptions of children up to six years old commissioning parents in surrogate arrangements.
- An employee who suffers a miscarriage in the third trimester or bears a stillborn child is entitled to six weeks' parental leave, regardless of whether leave had already commenced.
Where two employed parents cannot agree on how to divide their shared entitlement, the Bill introduces a considered default rule: the birthing parent takes four months, with the other parent entitled to the remaining ten days. If the birthing parent elects to take less than four months, the other parent may take the balance. This default deliberately departs from the Constitutional Court's interim equal-division reading-in, instead vesting the primary election in the birthing parent. A constitutionally sound recognition of her physiologically and legally distinct position.
These changes promote gender equality, recognise diverse family structures, and give working parents greater flexibility and security during a critical life event.
The UIA is simultaneously amended to align parental benefit payments with this new structure. A single parent or sole contributor is entitled to 17.32 weeks of benefits. Where both parents are contributors, they share 17.32 weeks plus ten days, with the same default apportionment applying if they cannot agree.
Employers should be updating their leave policies now given that the Constitutional Court's reading-in provisions, which may vary if the proposed provisions are enacted, require immediate implementation.
Schedule 11 and non-standard workers
Perhaps the most structurally transformative change across both Bills concerns workers who currently fall outside the definition of "employee" entirely: gig workers, platform economy workers, and dependent contractors who are engaged as nominal independent contractors.
The Constitutional Court has itself observed that "fewer and fewer people are in formal employment" and that more and more find themselves in the "twilight zone" of employment as supposed independent contractors subject to "faceless multinational companies who may operate from a web presence." The LRA Bill responds directly to this reality.
Proposed Schedule 11 to the LRA will extend the right of freedom of association, collective bargaining, and strike action to these workers. A critical feature of the proposed regime is the reverse presumption: the employer bears the burden of rebutting the presumption that a worker falls within the scope of Schedule 11. Equally, section 50A of the BCEA would extend the protections of sectoral determinations and enforcement provisions to individuals who perform work for another person and are not conducting an independent trade, profession, or business.
It is important to be clear about the limited scope of Schedule 11. It extends freedom of association and collective bargaining rights only. The full suite of unfair dismissal and unfair labour practice protections under the LRA are not extended to this category of worker save for automatically unfair dismissals relating to strikes as well as union activities. Nonetheless, the implications for platform economy businesses, logistics operators, and any employer making substantial use of independent contractor arrangements are profound. These businesses will need to assess their engagement models carefully, because the burden of proof now shifts to them.
Severance pay
The ELA Bill proposes to double the statutory minimum severance pay for dismissals for operational requirements from one week's remuneration per completed year of service to two weeks' remuneration per completed year of service.
This increase applies prospectively: employees will earn one week per year for service completed before the Bill's commencement date, and two weeks per year for service completed thereafter. Employers who are planning or anticipating retrenchments that straddle the commencement date will need to apply a dual calculation, a complexity that demands early planning. In addition, disputes about entitlement to severance pay, whether arising from statute, a collective agreement, or a contract of employment, may be referred to the CCMA for arbitration.
For employers in labour-intensive industries, this amendment will materially increase the cost of restructuring.
On-Call employees: Zero-hours contracts brought to heel
For the first time, South African law will specifically regulate on-call, zero-hours, and "if and when" employment contracts. The ELA Bill inserts a new section 9B into the BCEA, which applies to employees who are required to work only when the employer makes work available and who must be available to accept such work.
The proposed protections are meaningful in that employers would be required to specify in writing the guaranteed hours of work, the period of required availability, and the notice periods for reporting for work and for cancellation. Notice periods would need to be reasonable, having regard to the nature of the business and the effect of cancellation on the employee. If an employer cancels work without adequate notice, the employer would be required to pay the employee for those cancelled hours. Employees who have met their availability obligations may not be prevented from working for another employer, unless the employer has genuine, documented operational reasons such as protecting confidential information or preventing a conflict of interests.
On-call employees must be treated no less favourably than comparable employees performing the same or similar work.
There is, however, a notable drafting concern: the Memorandum of Objects states that section 9B is limited to employees earning below the earnings threshold under section 6(3) of the BCEA, but this limitation does not appear in the text of the proposed section itself. This is an inconsistency that employers and their advisers should raise in submissions.
Large-Scale retrenchments
The LRA Bill proposes to repeal the notoriously complex procedural regime in subsections 13 to 18 of section 189A, which has been the subject of multiple Constitutional Court decisions including Steenkamp v Edcon and Regenesys Management v Ilunga and which has generated significant uncertainty and litigation. The repeal returns the law to the position where all aspects of the fairness of a retrenchment dismissal can be challenged after the dismissal has taken effect.
Rule-making authority for large-scale retrenchment facilitations moves from the Minister to the CCMA. This is a pragmatic reform that should reduce the procedural minefields that have bedevilled large-scale restructurings for years.
Dismissal remedies fundamentally altered
The LRA Bill makes several significant changes to the law of dismissal. High earners lose reinstatement as a primary remedy. Under the proposed amendment to section 193, employees earning above a ministerially prescribed threshold will only be entitled to reinstatement if their dismissal constitutes an automatically unfair dismissal. For ordinary unfair dismissals, compensation will be the primary remedy. In addition, compensation for unfair dismissal may not exceed 12 months' remuneration, subject to a maximum amount of R1,800,000 per annum, adjusted annually in line with the Consumer Price Index.
In what is a long-overdue reform, an employee who refers a dispute about the fairness of a dismissal may not simultaneously bring a claim regarding the unlawfulness of that dismissal arising from the same facts, and vice versa.
Strengthened enforcement and the cost of non-compliance
The Bills significantly strengthen the state's enforcement arsenal. Key changes include:
- National Minimum Wage fines are set at twice the value of the underpayment (or twice the employee's monthly wage, whichever is greater) for a first offence, and three times that amount for repeat non-compliance. Fines must be remitted directly to the affected employee.
- Retirement fund contributions that are unpaid will be treated as a debt under the BCEA, with the Labour Court, CCMA, or bargaining council empowered to order payment of outstanding amounts together with interest under the Pension Funds Act. For a detailed analysis of the background to these provisions, see our earlier article here.
- Security pending objection to a compliance order is now required: an employer who objects to a compliance order must provide security equivalent to the full amount claimed. This closes a well-known avenue for delaying compliance through spurious challenges.
- Trade union representatives must be permitted to accompany labour inspectors during workplace inspections under the BCEA, extending an approach already established under occupational health and safety legislation.
Essential Services: a carefully defined right to strike
The LRA Bill introduces a significant change to the law governing industrial action in essential services. Under proposed amendments to sections 65 and 72, trade unions will be able to call protected strikes in essential services where a designated minimum service exists provided that employees who perform the minimum service are excluded from the strike and continue working.
The right to strike is therefore conditional: the essential service must have an agreed or determined minimum service in place, the strike may only proceed after statutory conciliation, and maintenance service employees remain excluded from strike action in all circumstances. Employees performing the minimum service who cannot strike retain the right to pursue their dispute through arbitration under section 74.
New and small businesses: a bargaining council holiday
In a meaningful concession to entrepreneurship, the LRA Bill proposes that a collective agreement concluded in a bargaining council regulating terms and conditions of employment will not bind a new employer with fewer than 50 employees for the first two years of operation. Businesses created by a transfer of a going concern under section 197, or by the division or dissolution of an existing business, are excluded from this dispensation.
Conclusion
The Labour Law Amendment Bills, 2025 are not incremental adjustments. They represent a fundamental rethinking of the architecture of the South African employment relationship. Who is protected, at what cost, and by what mechanisms. The doubling of severance pay, the extension of labour rights to platform workers, the restructuring of parental leave, the capping of unfair dismissal compensation, and the strengthening of enforcement powers will each, individually, require employers to revise policies, employment contracts, and financial models.
The pre-parliamentary comment stage for the Bill closed on 28 March 2026. We will keep a close eye to see if our comments were addressed in the next round of public participation in the normal course.
