Analysis: The Employment Laws Amendment Bill, 2025

02 Mar 2026

(Government Gazette No. 54220 – 26 February 2026)

By David Short |Director, Ali Sonday |Associate Director, Paula Phukuje | Senior Associate, Amanda Kubheka | Candidate Attorney

A Clause-By-Clause Operational Analysis

The Minister of Employment and Labour, Nomakhosazana Meth, has published the Labour Law Amendment Bill, 2025, together with its Memorandum of Objects, for public comment (Government Gazette, 26 February 2026).

The Bill proposes amendments to the following principal statutes:

Basic Conditions of Employment Act 75 of 1997 (BCEA)
Labour Relations Act 66 of 1995 (LRA)
Unemployment Insurance Act 63 of 2001 (UIA)
National Minimum Wage Act 9 of 2018 (NMWA)
Consequential amendments to EEA 55 of 1998 and enforcement provisions

The Employment Laws Amendment Bill, 2025, is a voluminous piece of legislation containing numerous technical and administrative adjustments. In this memorandum, Fairbridges Attorneys has intentionally focused on those pivotal reforms likely to have a significant operational and financial impact on both employers and employees. While the Bill addresses various procedural refinements, our analysis prioritizes the substantive shifts, such as revised severance structures, the regulation of flexible work, and the realignment of parental rights, that necessitate immediate strategic review by HR and legal departments.

Written comments must be sent to Hlukani.Mabunda@labour.gov.za or Kopano.Kgatlhanye@labour.gov.za and must reach the Department no later than 30 days from publication, 26 February 2026.

It is important to note that a bill is a proposed law, it is not law while at the consultation or parliamentary stages. After the 30-day comment period the Department will consider submissions, may revise the draft, and then formally introduce the Bill to Parliament.

The parliamentary process typically includes referral to the relevant portfolio committee, publication of the Bill for further public participation and committee hearings, committee reports and possible amendments, a second and third reading in the National Assembly (and where required, consideration by the National Council of Provinces), and finally transmission to the President for assent. Only after both houses have passed the Bill and the President has signed it does the Bill become an Act; the Act will then come into force on the date specified in the law (either immediately on assent or on a later commenced date). Since amendments at committee or parliamentary stages are common, employers should treat the Bill as a live risk and consider submitting focused, evidence-based comments now; Fairbridges currently assists its clients in preparing and lodging a sector-specific submissions for proposed Bills.

The Department of Employment and Labour provided a Memorandum, which records that the proposed amendments aim to: ”address non-standard work, align parental benefits with constitutional jurisprudence, remove enforcement bottlenecks, and rationalise dispute resolution across employment statutes..”

Notably, several provisions extend beyond the Van Wyk judgment, reflecting policy choices rather than court-mandated reform, as follows:

Basic Conditions of Employment Act (BCEA) Amendments

Severance Pay – Doubling of Statutory Minimum

Section 41 of the Basic Conditions of Employment Act currently obliges an employer to pay an employee dismissed for operational requirements severance pay equal to one week’s remuneration for each completed year of continuous service. The calculation of “remuneration” must be conducted in accordance with section 35 of the BCEA, read with the Ministerial determination on the calculation of remuneration, which includes cash payments and certain benefits but excludes discretionary bonuses and payments not forming part of regular earnings.

The statutory minimum operates as a floor, not a ceiling, and is supplemented by collective agreements, individual contracts, or enhanced voluntary severance packages (VSPs). In practice, section 41 interacts directly with sections 189 and 189A of the Labour Relations Act, because severance pay is a mandatory topic of consultation during retrenchment processes.

The proposed amendment doubles the statutory entitlement to two weeks’ remuneration per completed year of continuous service. This represents a substantive change to the minimum standard and will apply automatically unless more favourable terms exist.

The amendment materially alters the cost structure of operational-requirements dismissals. Since severance pay is a statutory entitlement, it cannot be contracted out of (section 4 BCEA), and failure to pay the correct amount renders the dismissal procedurally unfair and exposes the employer to compliance orders, arbitration awards, and potential interest in terms of section 78 BCEA.

For long-service employees, the financial liability becomes exponential. This will affect:

Section 189(3) notices, which must now reflect revised severance calculations
Facilitation processes under section 189A, where cost modelling forms part of consensus-seeking
Settlement negotiations, where severance often anchors the monetary framework

Employers will also need to reassess actuarial provisions for restructuring, particularly in sectors with long tenure profiles, as well as the tax treatment of severance in terms of the Income Tax Act.

Parental Leave: Adoption Leave – Extension to Children under 6

Sections 25A to 25C of the BCEA regulate parental, adoption, and commissioning parental leave. At present, adoption leave is linked to the adoption of a child below the age of two years, with corresponding UIF benefits administered under the Unemployment Insurance Act.

The bill sets out the new parental leave entitlements as per the Van Wyk v Minister of Employment and Labour, and where the Constitutional Court was silent on the reasonable adoption age, the bill proposes an extension which aligns the proposed statute with constitutional equality jurisprudence, where the Constitutional court emphasised equal parental entitlements and the best interests of the child under section 28 of the Constitution.

By extending adoption leave to children under six years, the amendment recognises that bonding, caregiving, and integration needs are not confined to infancy. This creates:

Increased leave utilisation across a broader employee cohort
Expanded UIF claim exposure
Greater workforce planning complexity

New Regulation of “On-Call” / Intermittent and Availability Work (Proposed Section 9B)

The BCEA currently regulates ordinary hours of work (section 9), overtime (section 10), compressed working weeks (section 11), and averaging arrangements (section 12), but does not expressly regulate zero-hour contracts, standby requirements, or availability obligations. This has created interpretive disputes regarding whether required availability constitutes “working time”.

The proposed insertion of section 9B introduces a statutory framework governing:

Mandatory recording of availability periods
Minimum guaranteed hours (where applicable)
Compensation methodologies for standby and call-out work
Written documentation of on-call arrangements

This will intersect with section 48 (written particulars of employment) and section 29 (written statement of terms and conditions).

Employee-Status Risk and Section 200A LRA

Failure to properly document availability obligations increases the risk that individuals classified as independent contractors will be deemed employees under section 200A of the LRA, particularly where control, economic dependence, and integration are present.

For employers utilising flexible labour models, the amendment necessitates contractual redesign, accurate time-recording systems, and recalibration of working-time compliance to avoid contraventions of sections 9 and 10 BCEA.

Labour Inspectors – Trade Union Accompaniment (Amendment to Chapter 10 BCEA)

Chapter 10 regulates the powers of labour inspectors, including entry, inspection, questioning, and the securing of undertakings (sections 63-68). The amendment permits a registered trade union representative to accompany an inspector during workplace inspections.

This fundamentally alters the inspection dynamic, introducing an organised labour presence into what has historically been an administrative compliance process. While inspectors retain statutory authority, unions will gain real-time access to:

Payroll data
Employment contracts
Working-time records
Health and safety documentation (often reviewed concurrently)

This raises issues relating to confidentiality, POPIA compliance, and privilege, requiring employers to implement controlled disclosure protocols.

Enforcement – Compliance Orders to Arbitration Awards

Under sections 69-73 BCEA, a compliance order may be objected to, after which the matter may proceed to the CCMA. Historically, this created delays between inspection findings and enforceable outcomes.

The amendment streamlines the process by enabling direct referral of compliance orders to arbitration, with arbitration awards becoming immediately enforceable as if they were orders of the Labour Court (section 143 LRA).

This significantly accelerates enforcement timelines and increases the risk exposure for non-compliant employers, including attachment of assets and writs of execution.

Labour Relations Act (LRA) Amendments

Limitation of Remedies for High-Earning Employees

Section 193 of the LRA currently establishes the following remedies for unfair dismissal:

(a) order the employer to reinstate the employee from any date not earlier than the date of dismissal;

(b) order the employer to re-employ the employee, either in the work in which the employee was employed before the dismissal or in other reasonably suitable work on any terms and from any date not earlier than the date of dismissal; or

The proposed amendment empowers the Minister to prescribe an earnings threshold where high earning employees will only be entitled to receive pay compensation as a remedy, except in cases of automatically unfair dismissal (section 187) and discrimination-related dismissals.

This shifts litigation strategy toward compensation modelling, particularly for senior management, and may reduce the prevalence of reinstatement orders in high-income disputes.

Retrenchment Facilitation (Section 189A)

The amendments clarify procedural pathways during facilitated retrenchments, including access to the Labour Court, timing of challenges, and the sequencing of procedural versus substantive fairness disputes. This reduces technical interlocutory litigation but imposes stricter compliance with statutory timelines.

Expanded CCMA Jurisdiction

By broadening the definition of “employment law”, the CCMA will acquire jurisdiction over disputes arising from the BCEA, UIF, and the National Minimum Wage Act.

Furthermore, any dispute about severance pay may be referred to the CCMA for arbitration, whether the dispute arises out of a statute, collective agreement or contract of employment. This applies to disputes that only concern a claim for severance pay in which procedural or substantive fairness is not challenged. This clarifies the issue of jurisdiction of the CCMA in the light of inconsistent decisions on this topic by the Labour Court and the High Court. This will avoid a duplication of claims where an employee’s entitlement to severance pay may arise in part from statute and in part from a collective agreement or contract of employment.

This creates a single-forum enforcement model, reducing fragmentation but increasing CCMA caseloads and the need for integrated compliance strategies.

Limited Liability for Statutory Functionaries (Section 209a)

The introduction of limited liability for commissioners, inspectors, and bargaining council agents absent bad faith, unlawfulness, or gross negligence, aligns with administrative-law principles and protects decision-makers performing statutory functions.

Unemployment Insurance Act (UIA) Amendments

The UIF framework will be aligned with the expanded parental-leave regime, including adoption benefits for children under six and harmonised parental-benefit categories. Employers will have to ensure that UIF declarations, contribution records, and benefit codes correspond with the revised leave types to prevent claim rejections.

National Minimum Wage Act (NMWA) Amendments

The amendments to sections 4 and 5 clarify that deferred remuneration, allowances, and in-kind benefits do not count toward minimum-wage compliance. This codifies existing interpretive guidance and eliminates the use of non-cash components to meet statutory thresholds.

Employment Equity Act (EEA) – Procedural Alignment

The procedural alignment of section 10(6) enables harassment disputes to be referred directly to the CCMA and removes duplicative enforcement pathways. The new section 10A into Act No. 55 of 1998 to clarify the circumstances in which disputes under the EEA may be referred to a bargaining council.

Health & Safety Enforcement Interface

Although the Occupational Health and Safety Act is not substantively amended, the inspection reforms create a converged enforcement environment in which BCEA, OHS, and payroll compliance are assessed simultaneously, often in the presence of trade union representatives.