Proposed Changes to Our Labour Laws in 2026 – Part 2

In part 1 of our article, we focused on the proposed changes to the Labour Relations Act which were gazetted by the Minister of Employment & Labour on 26 February 2026.

On the same day, the Labour Law Amendment Bill was also published for public comment. We deal with some of those proposed amendments in this part 2.

Proposed changes to the Basic Conditions of Employment Act (“the BCEA”)

• One of the defining features of employment law is that it is often required to adapt to changes in how work is arranged, procured and remunerated. Prior amendments have sought to address ‘a-typical’ forms of employment such as TES workers, part-time workers, fixed-term workers, and workers engaged in disguised employment relationships.

• More recently, there have been substantial technological innovations which have given rise to drastic changes in the world of work. One only needs to think about the propensity of ride-hailing services, app driven food delivery, the availability virtual assistants and online ‘contracting’ websitesto understand that the nature of employment has again fundamentally shifted. These changes are often embodied in so-called zero-hour contracts, gig worker contracts, on-call employment agreements and other similar arrangements which, by definition, exclude a variety of employment law protections.

• Legal challenges attempting to ‘catch’ these workers in the wider net of employment law in South Africa have largely failed. This is perhaps best embodied in the Labour Court’s decision in the application brought by Uber Drivers to be declared employees, which failed because of non-joinder of the Dutch based ‘Uber App’ development company. Such challenges in other jurisdictions have been more successful.

• The legislature now seeks to address this. One of the critical proposed amendments to the BCEA seeks to provide employees in the gig economy with certain protections, including establishing guaranteed working hours, maximum hours of work, availability to work, notice periods and leave. The proposed changes will, realistically, require employers to reconsider their approach and, in our view, may have the practical effect of doing away with the ‘zero hour’ concept altogether. The wider gig-economy will however survive in a more regulated form. The changes must also be read in the context of the intended introduction of Schedule 11 to the LRA providing a definition of these types of workers and dealing with, amongst other things, the right to organize.

• Another significant change relates to the BCEA’s leave provisions. The Van Wyk judgment on parental leave, which received significant media attention, has resulted in proposed changes to sections 25, 25A and 25B of the BCEA.

• These changes were necessitated by the Court’s finding that sections 25, 25A, 25B and 25C of the BCEA were unconstitutional. The proposed amendments now align with the approach proposed by the Constitutional Court. Most employers have already adopted these measures, and consequently the effect of this amendment is likely to be minimal. The shift in thinking may however affect employers who offer paid benefits to their employees, as those policies run the risk of being discriminatory where they exclude certain categories of parents.

• Finally, the amendments intend to alter section 41 of the BCEA and increase severance payments in the case of retrenchment from 1 week per completed year of service to 2 weeks per completed year of service. Importantly, this amendment will only operate for each completed year of service which commenced after this change becomes effective. This change may not have much effect on employers in the short term but will effectively double retrenchment costs for every year after the amendment comes into effect, meaning that retrenchment will become a very costly exercise (especially for smaller employers). In the short-term, this may incentivize retrenchments where companies wish to avoid future increased cost. In the long term, it means that they will need to place greater emphasis on finding alternatives which are workable.

• A proposed new section 65A will permit recognized trade union representatives to accompany labour inspectors on workplace inspections. This aligns the BCEA with the Occupational Health & Safety Act and the Mine Health and Safety Act and will, it is hoped, ensure compliance with the BCEA.

Proposed changes to the Employment Equity Act (“the EEA”)

• The Bill proposes an amendment to section 10(6) of the EEA by permitting employees to refer all harassment claims to the CCMA for arbitration. Currently, only sexual harassment claims may be arbitrated by the CCMA, but this has created jurisdictional difficulties where employees allege harassment on more than one ground. This proposal is sensible and should be supported.

• A new section 10A is proposed to permit the referral of a dispute to a bargaining council (instead of the CCMA) if a provision in a collective agreement permits this, or if the bargaining council in question is accredited to perform a dispute resolution function by the CCMA. This is one of several proposals to alleviate some of the CCMA’s workload, but it will realistically require bargaining councils to increase their funding to cater for this broader dispute resolution – something that employers and employees may not be too excited about; and

• The Bill proposes an additional subsection to provide that employers who have received a certificate of compliance in terms of section 53 of the EEA are not required to be assessed for employment equity compliance under different legislation. This change should be welcomed by employers, who will be grateful for the reduction in compliance and red tape.

Proposed amendments to the Unemployment Insurance Act (“UI Act”)

• The Bill proposes to amend the UI Act to ensure alignment with the proposed changes to the parental leave regime in the BCEA. There is nothing controversial about these changes.

Proposed amendments to the National Minimum Wage Act (“NMW Act”)

• The Bill proposes various amendments. The only amendment likely to affect employers, however, relates to the calculation of remuneration and specifically to ensure that deferred payments do not form part of that calculation. The amendment was prompted by the Labour Appeal Court’s decision in Quantum Foods and is intended to ensure that deferred payments do not form part of any calculation of wages in terms of the NMW Act.

• This is also a positive development. However, employers who calculate their minimum wage rates with reference to benefits, and who are now required to pay benefits over-and-above the minimum wage, may seek to restructure or reduce benefits because of the proposed amendment.