The publication of the Employment Laws Amendment Bill, 2025 and the Labour Relations Amendment Bill, 2025 on 26 February 2026 marks a significant development in South African labour law. These Bills, released for public comment until 30 March 2026, are the outcome of engagements between the state, organised labour, and organised business. They reflect an attempt to modernise labour protections in response to the evolving nature of work.

A central feature of the proposed reforms is the introduction of an expanded, purpose-specific definition of “employee” under both the Labour Relations Act 66 of 1995 (LRA) and the Basic Conditions of Employment Act 75 of 1997 (BCEA). This article examines the rationale behind these changes, the structure of the proposed definitions, and their potential implications for employment relationships in South Africa.

Limitations of the Traditional Definition

Historically, the concept of an “employee” in South African law has been tied to the existence of a contract of employment and the presence of control or supervision by an employer. While this framework has provided a workable foundation, it has become increasingly strained in the context of modern labour markets.

Non-standard forms of work—particularly those found in digital platform environments, outsourced services, and flexible contracting arrangements—have exposed gaps in the existing legal framework. Many workers who are economically dependent on a single entity are nonetheless excluded from statutory protection due to their classification as independent contractors. The proposed amendments seek to address this regulatory shortfall.

The Structure of the Expanded Definitions

Rather than altering the primary definitions contained in the LRA and BCEA, the legislature has opted to introduce parallel definitions that apply in specific contexts.

The LRA: Schedule 11

The LRA Amendment Bill proposes the insertion of a new Schedule 11, which extends certain collective labour rights to individuals who fall outside the traditional definition of employee but who perform work for another party in circumstances that do not resemble a typical client–service provider relationship.

This formulation introduces a broader conception of work relationships while retaining an exclusion for genuinely independent business activities. It also adopts a wide understanding of “employer”, encompassing any party for whom the work is performed.

Importantly, the inclusion of these workers within the ambit of Chapters II, III, and IV of the LRA grants them access to organisational rights, collective bargaining processes, and the right to strike. This represents a notable expansion of collective labour protections.

The BCEA: Section 50A

The BCEA Amendment Bill introduces section 50A, which similarly broadens the category of persons who may be regarded as employees for specific purposes. The wording employed in this provision is more expansive, covering individuals who either perform work or render services, provided they are not operating a truly independent enterprise in relation to the recipient.

In addition, the amendments extend this expanded definition to enforcement and compliance mechanisms, thereby allowing affected individuals to benefit from sectoral determinations and statutory enforcement procedures.

Subtle Differences in Legislative Drafting

Although the two Bills are aligned in purpose, their drafting is not identical, and these differences may have practical consequences. The LRA provision adopts a relatively straightforward formulation, focusing on whether an individual “works for” another party. By contrast, the BCEA employs broader language, which may capture a wider range of relationships, including those involving service provision without a traditional employment structure.

Further complexity arises from the exclusion relating to independent business activity. The phrasing used in the BCEA may allow for situations in which an individual operates an independent business generally, yet is still classified as an employee in respect of particular engagements. This creates scope for interpretive uncertainty and potential litigation.

The Presumption of Employment

Both Bills introduce a presumption that an individual falling within the expanded definition is an employee unless the contrary is established. To rebut this presumption, the putative employer must demonstrate the absence of three key elements: control, organisational integration, and the provision of services to third parties on behalf of the employer under conditions determined by the employer.

This approach shifts the evidentiary burden in a manner that favours worker protection. In practice, it may prove difficult for employers to satisfy all three criteria, particularly in industries where standardised contractual terms and operational control are inherent features of the business model.

Recognising Dependent Work Relationships

The amendments implicitly acknowledge the existence of a category of workers who do not fit neatly within the binary distinction between employee and independent contractor. These individuals, often described as “dependent contractors”, are formally self-employed but remain economically reliant on a single entity.

By extending limited statutory protections to this group, the legislature seeks to address vulnerabilities associated with precarious work while avoiding the full reclassification of such workers as employees in the traditional sense.

Implications for Key Sectors

The proposed changes are likely to have a pronounced impact in sectors characterised by non-standard work arrangements. These include digital platform services, logistics and distribution networks, commission-based sales structures, and outsourced service industries.

Businesses operating in these sectors may face increased legal exposure, particularly where their operational models rely on the classification of workers as independent contractors. The absence of clear statutory guidance on key concepts—such as what constitutes acting “on behalf of” another or working under “terms set” by another party—further heightens uncertainty.

Scope of Protection

It is important to emphasise that the expanded definitions do not grant affected individuals the full range of protections available to traditional employees. Under the LRA, the extension is limited to collective labour rights and does not include general protection against unfair dismissal or unfair labour practices. Similarly, under the BCEA, the benefits are confined to sectoral determinations and enforcement mechanisms, rather than the full spectrum of minimum employment standards. This targeted approach suggests an attempt to incrementally expand protection without fundamentally restructuring the existing legal framework.

Strategic Considerations for Employers

In anticipation of these reforms, employers should undertake a careful review of their labour arrangements. Particular attention should be paid to the degree of control exercised over workers, the extent to which such workers are integrated into the organisation, and the contractual terms governing their engagement. Employers operating in high-risk sectors should also consider engaging with the legislative process by submitting comments on the Bills. Early adaptation may mitigate the risk of future disputes and regulatory intervention.

Conclusion

The introduction of an expanded definition of “employee” represents a deliberate response to the changing dynamics of work in South Africa. By extending selected protections to workers previously excluded from the statutory framework, the proposed amendments aim to strike a balance between flexibility and fairness. Nevertheless, the reforms introduce new areas of legal complexity, particularly in relation to classification and the interpretation of key provisions. Their ultimate significance will depend on how they are implemented and interpreted in practice. What is clear, however, is that the traditional boundaries of employment law are being reshaped, requiring both employers and legal practitioners to adopt a more nuanced understanding of work relationships.

Written by Ross Hendriks, Specialist Employment and Labour Law, SchoemanLaw Inc