Ads, Arts and Events: Performers may soon be Treated as Employees

By Aabeed Abdullatief | Director

Government moves to extend labour protections to SA’s creative performers

A recent Government Gazette notice suggests a potentially major shift for South Africa’s creative economy. The Minister of Employment and Labour has signalled an intention to deem performers in advertising, artistic and cultural activities to be “employees” (for specific purposes), rather than treating them as independent contractors by default.

If implemented, this would change the compliance landscape for parts of the industry that routinely contract on a project-by-project basis – particularly where engagement terms already look and feel like employment (fixed hours, supervision, and payment for services rendered) but the label says “contractor”.

What has been Proposed

The notice is a “notice of intention” – not a final change yet. Interested parties have been invited to submit written representations within 30 days of publication (the notice was published 23 January 2026), with the comment deadline reflected as 22 February 2026 on the government portal.

Importantly, the intention is not to rewrite every labour statute for the sector in one stroke. Instead, it proposes deeming performers as employees for specific protections under four frameworks:

1. Basic Conditions of Employment Act (BCEA) – Only certain sections (working time, overtime, rest and meal intervals, leave, written particulars, payslips/records, notice/termination and severance pay).
2. National Minimum Wage Act (NMWA) – To ensure minimum wage protections apply.
3. COIDA (Compensation for Occupational Injuries and Diseases Act) – To extend workplace injury/disease coverage.
4. Labour Relations Act (LRA) – Specifically section 198B(10)(a) dealing with certain protections around fixed-term contracts exceeding 24 months.

The Minister indicates the proposal follows stakeholder input and builds on earlier policy work (including a 2019 process focused more narrowly on film and television).

The “label” vs the reality

In the Gazette, the rationale is explicit. Many performers work under conditions characteristic of employment relationships (for example, fixed working hours and supervision) but are often excluded from statutory protections because they’re classified as “independent contractors”.

That distinction matters because much of South African labour protection turns not on what the contract calls the relationship, but what it is in substance. This proposal – if finalised – would move the industry closer to a clear statutory baseline for performers, reducing the gap between on-the-ground working realities and legal protections.

What would likely change for Employers, Producers and Agencies

If you engage performers (broadly defined across advertising, artistic and cultural work), the practical adjustments could include:

• Tighter handling of hours, overtime, rest periods, meal intervals, Sunday/public holiday work; especially on long shoot days and intensive rehearsal schedules.
• Annual leave, sick leave, and maternity leave implications – potentially requiring new approaches for short engagements or intermittent work patterns.
• Written particulars of employment, payslips and record-keeping requirements become central (and auditable).
• Notice protections and severance pay issues may become harder to sidestep contractually.
• COIDA exposure – budgeting and administration for occupational injuries/diseases – material in stunt work, location shoots, stage performance and high-risk environments.
• Ensuring rates don’t fall below the minimum wage threshold (even where work is episodic).

How will this proposed change affect Performers?

For performers, the proposal is intended to reduce economic vulnerability and increase access to standard protections such as regulated hours, paid leave, injury cover and clearer termination safeguards.

It may also strengthen performers’ ability to query practices that have become “normalised” in parts of the industry – such as unpaid standby time, excessive hours without overtime treatment or opaque payment deductions – because the statutory framework becomes harder to contract out of (at least for the specified provisions).

How will “performer” and “employer” be applied?

While the Gazette notice clearly lists the statutory provisions intended to apply, the operational complexity sits in questions like:

• Who is the “employer” in multi-layered arrangements (brand / agency / production company / casting house)?
• How will the rules apply to once-off gigs versus repeated engagements?
• What happens where performers operate through personal service companies?
• How will the sector handle hybrid realities (some engagements that truly are independent, others that look like employment)?

These are exactly the kinds of industry-specific issues that public comment processes are meant to surface – so the eventual approach is workable without undermining the protections.

Practical implications for businesses engaging performers

Many production companies, agencies, advertising businesses and event organisers (together, entities) engage performers on an independent contractor basis because the work is typically gig- or project-specific. That model gives entities a degree of predictability when pricing work, tracking profitability, and managing short lead-times and fluctuating production schedules. It also supports flexibility where entities themselves are operating under month-to-month client arrangements, or where service level agreements have technically expired but continue informally on a rolling basis. In those environments, staffing and cost commitments must remain agile if the entity is to stay commercially viable.

Against that backdrop, the most practical response is not to wait for the final position, but to begin refining internal operations so they can absorb the proposed reform with minimal disruption. This can include strengthening and standardising call sheets, time recording, shift planning, and approvals, tightening the link between project deliverables and underlying resource allocation, and ensuring clear contractual and administrative workflows for onboarding, records and payment. While this may increase operational input in the short term (and reduce reliance on “light touch” outsourcing arrangements), it can also drive better workflow discipline, stronger cost control, and, critically, lower contingent liability exposure over time as engagement practices become more defensible and consistently managed.