Draft amendments to employment laws - part 1: Parental leave overhaul and more

Image source: Brad Calkins – 123RF.com

The public has until 28 March 2026 to submit comments on the proposed legislation. This opportunity for comment precedes the formal introduction of the bills to Parliament, where further public participation will occur.

Nevertheless, employers are encouraged to consider the proposals carefully and use this opportunity to make representations to inform the further development of the proposed amendments.

Some of the more notable changes that have been proposed by the Employment Laws Amendment Bill, 2025 are outlined below.

Regulation of ‘on-call’ work or ‘zero-hour’ contracts

A new section is proposed to be included in the BCEA which will regulate what is commonly known as the ‘on-call’ relationship, or ‘zero-hour’ employment contracts.

This category of employment contract is used by employers where there is a variable demand for work. The employer calls the employee to work only when there is work available and the employee must be available to accept that work. Thus, the worker works a flexible (often unpredictable) number of hours, which can result in little job or income security.

In terms of the proposed provision, which applies only to employees who earn below the earnings threshold, an employer will be required to specify in the employee’s written particulars of employment:

1. the maximum hours of work;
2. when employees must be available for work; and
3. the notice period that employees are entitled to, for purposes of reporting for work and in respect of cancellation of work (which notice period must be reasonable, considering a number of factors).

Notably, the previous iteration of this amendment (still reflected in the explanatory memorandum) also required the employer to specify the guaranteed hours of work in each period. This requirement has been removed from the current draft.

If the employer fails to provide the requisite notice of cancellation of work, the employer must remunerate the employee for the hours of cancelled work.

Further protections provided by the provisions include that the employer cannot prevent the employee from working for another person, unless the employer has genuine operational requirements for doing so, and that the employee must be treated on the whole not less favourably than the employer’s other employees who perform the same or similar work, unless there is a justifiable reason for different treatment.

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New parental leave provisions and UIF benefits

In line with the Constitutional Court’s order in the Van Wyk judgment, amendments are proposed to the parental leave provisions in the BCEA to remedy the constitutional defects in the legislation.

The proposed amendments largely align with the reading-in order provided by the Court, that provided for the sharing of four months and 10 days’ parental leave between parents who are both employed – save for the following noticeable differences:

• An employee, excluding a female employee who gives birth to a child, is not entitled to take parental leave more than once in any 12-month period.
• Where both parents are employed and each seeks to exercise their right to parental leave, they are required to conclude an agreement concerning the apportionment of parental leave.

  They are required to submit this agreement to their respective employers, and must each give notice to their employers, specifying the dates on which they intend to commence and return to work after parental leave.

• Parental leave need not necessarily be taken from the date of birth or adoption, but can be taken after such date, provided that no employee is entitled to more than four months’ leave and that the employee takes parental leave within four months of the date of birth or adoption.

  This, coupled with the fact that there is no requirement to take one’s leave in a single sequence of consecutive days (as was provided for by the Court’s reading-in), appears to cater for the situation where employees seek to split their leave (eg take part of their leave immediately upon birth of the child and the remainder of their leave a few weeks or months later).

• The Minister must prescribe regulations specifying forms that employees may use to (i) give notice of the commencement of parental leave and return to work; and (ii) record any agreement regarding the apportionment of parental leave.
• If an agreement on the apportionment of leave cannot be concluded, the employee who is the birth mother may decide how much parental leave she wishes to take (up to a maximum of four months) and her partner will be entitled to take the portion she elects not to utilise.

  This is a welcome change from the reading-in provisions by the Constitutional Court. In terms of those reading-in provisions, where the parents cannot agree on how to split the parental leave period, the leave shall be apportioned between the parents as equally as possible.

  In enforcing the apportionment, this may cause the unintended consequence of involvement by the employer in the intimate private affairs of parents. It therefore makes sense for the birth mother to exercise this choice in the absence of consent between the parents.

• Parties to a parental relationship who are entitled to parental leave because of adoption or surrogacy and who cannot agree on the manner in which parental leave is to be shared, must apportion the parental leave between them as close to equally as possible.

Parental leave is also proposed to extend to adoptive parents who adopt a child aged 6 or younger. The previous two-year age cap on adoption leave was one of the points of challenge in the Van Wyk case, but the Court refused to provide an interim reading-in in relation to this provision, and left this to the Legislature to determine.

The Bill further proposes to amend the Unemployment Insurance Act to provide for parental benefits which align with the amended provisions of the BCEA.

The reading-in that an employee who is the only employed party in a parental relationship is entitled to take four months’ parental leave has been retained in the draft Bill. This has the unintended consequence that the most privileged are treated the most favourably: most often, where one of the parents does not work, this is out of choice because the household has sufficient financial resources.

A parent with a stay-at-home partner would accordingly qualify for the full amount of parental leave whereas parents who both work may share the parental leave entitlement of four months and 10 days.

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Increase in statutory severance pay

The minimum statutory severance pay that an employee would be entitled to upon retrenchment (ie dismissal based on an employer’s operational requirements) is proposed to double.

It is currently one week’s remuneration per completed year of continuous service. Under the proposed amendment, the statutory minimum will increase to two weeks’ remuneration per completed year of continuous service.

The entitlement to severance pay equal to two weeks’ remuneration only applies to a completed year of service with that employer which commenced after the commencement of the amendment Act.

The impact of this provision is that there may be discrepancies in the severance pay entitlements of retrenched employees.

Those who commenced employment before the Act takes effect, will be entitled to one week’s pay per completed year of service as well as two weeks’ pay per completed year of service for years of service that commenced after the amendments took effect.

Those who commenced employment after the Act takes effect (and have completed a year’s service) are entitled to two weeks’ remuneration per completed year. This may well cause industrial conflict.

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Strengthening of enforcement processes

Several amendments are proposed to the enforcement provisions of the BCEA, including the provision for one or more trade union representatives to accompany labour inspectors on all inspections of the workplace, and for employers to pay an amount as security to the CCMA when challenging a compliance order, equivalent to the amount that the employer is required to pay in terms of the compliance order.

Amendments are also proposed to clarify and strengthen the enforcement procedures for an employer’s failure to pay contributions to a benefit fund.

This follows the withdrawal of the 2003 variation notice by the Minister earlier this year, to enable labour inspectors to enforce compliance with section 34A of the BCEA relating to the payment by employers of contributions to retirement funds.

Extended jurisdiction over unfair discrimination claims

Amendments are proposed to the Employment Equity Act which would allow employees to refer disputes under the Act to bargaining councils if this is provided for in a collective agreement, or if the council has been appropriately accredited.

Further, all allegations of unfair discrimination on grounds of harassment are proposed to be referred to arbitration. Currently, this route is reserved for cases involving sexual harassment and for unfair discrimination claims where the claimant earns below the earnings threshold.

Clarification of components of national minimum wage

The provisions of the National Minimum Wage Act are proposed to be amended to clarify that when calculating whether there is compliance with the minimum wage, deferred payments made to employees are not taken into account.

The need for this amendment arose from the Labour Appeal Court’s decision in Quantum Foods (Pty) Ltd v Commissioner Jacobs NO and Others where the Court found that a deferred contractual bonus, which was not gratuitous in nature, was to be included in the calculations, based on the current wording of the statute.

A copy of the Employment Laws Amendment Bill, 2025 can be found here.

Look out for part 2, where we will unpack the Labour Relations Amendment Bill, 2025.