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The Portfolio Committee on Employment and Labour has invited public comment on the Employment Services Amendment Bill, No. 16 of 2026. The Bill was introduced in the National Assembly on 29 May 2026 and proposes significant amendments to the Employment Services Act, No. 4 of 2014. It is intended, among other things, to strengthen the regulation of employment services and establish a more comprehensive framework for the employment of foreign nationals in South Africa.

If enacted in its present form, the Bill will materially increase the compliance obligations of employers that employ, or intend to employ, foreign nationals. It will also give labour inspectors clearer enforcement powers and expose employers to potentially severe financial penalties for repeated non-compliance.

Importantly, this is still a Bill and is not yet law. Even after enactment, it will come into operation only on a date fixed by the President by proclamation in the Government Gazette. Employers nevertheless have good reason to assess the proposals now, particularly because several important operational details will later be determined through regulations and sector-specific quota notices.

A wider scope of application

One of the Bill’s broader changes is that the Employment Services Act will no longer be confined as narrowly to conventional employees and profit-making employment agencies.

The proposed definition of “worker” encompasses any person who works for another and receives, or is entitled to receive, payment for that work, whether in money or in kind. “Employment” would consequently include employment as either an employee or a worker. The definition of a private employment agency would also be expanded by removing the requirement that employment services must be provided “for gain”. Non-profit organisations and other entities providing employment services without earning a profit may therefore fall within the regulatory framework.

For employers, this means that compliance cannot necessarily be avoided merely by labelling a person an independent worker or by using an intermediary that operates on a non-profit basis. The actual nature of the work and the payment arrangement will become increasingly important.

A new framework for employing foreign nationals

The centrepiece of the Bill is a proposed new Chapter 3A governing the employment of foreign nationals.

An employer may not employ a foreign national unless that person is lawfully permitted to work in South Africa under the Immigration Act, the Refugees Act, another applicable law, or a binding international agreement. The employer must also establish that the person is authorised to perform the particular work for which they are being employed. A general entitlement to be present or work in South Africa will therefore not necessarily be sufficient if the relevant visa or permit does not authorise the specific work concerned.

Before recruiting a foreign national, an employer would have to satisfy itself, in the prescribed manner, that no persons in South Africa other than foreign nationals have the necessary skills to fill the vacancy. Regulations may prescribe how this must be established and may require employers to use public employment services or private employment agencies to recruit suitable South Africans or refugees.

This is likely to turn recruitment into a more evidence-driven process. Employers may need to retain vacancy advertisements, recruitment reports, candidate shortlists, reasons for rejecting local applicants, records from recruitment agencies, and proof that prescribed employment services were used. A bare assertion that no suitable local candidate was available is unlikely to be sufficient once detailed regulations are issued.

Employers would also have to prepare a skills transfer plan for a position occupied by a foreign national. The Minister may exclude categories of employers, employees, or workers from this requirement where it would not be practicable, but any exclusion must be issued in the Government Gazette on the advice of the Employment Services Board.

In practice, employers may be expected to identify local employees who can acquire relevant knowledge, specify the skills to be transferred, establish time frames, and maintain evidence of training or mentoring. The requirement could be especially significant where foreign nationals occupy technical, professional, or managerial positions.

The Bill further requires foreign nationals to receive terms and conditions of employment that are not inferior to those that would be offered to South African citizens. Employers may therefore not use immigration status as a means of reducing wages, benefits, or employment protections. Copies of the relevant visa or permit and other documents demonstrating a lawful entitlement to work must also be retained.

Sectoral, occupational, and regional quotas

The Bill would empower the Minister of Employment and Labour, after consulting the Employment Services Board, to prescribe maximum quotas for foreign nationals employed in particular sectors, occupational categories, or regions. Quotas may operate nationally or in specified geographical areas and may apply to an employer’s workforce as a whole or to a particular occupational category.

Before a quota is introduced, a draft notice must generally be published for at least 30 days of public comment. The final notice must specify the periods within which existing and newly established employers must comply. In determining a quota, the Minister must consider matters including the availability of skills among South Africans, refugees, and asylum seekers, the country’s need for critical skills, the scope of relevant bargaining councils or sectoral determinations, and South Africa’s international obligations.

Small employers must be excluded from quota notices. Unless a notice provides otherwise, this means a private-sector employer with fewer than 10 employees, provided that it does not operate more than one business and was not created by dividing or dissolving an existing business. The exclusion is therefore not a blanket exemption from the Bill’s other requirements relating to lawful employment, verification, record keeping, and employment conditions.

An employer that cannot comply with an applicable quota may apply for an exemption. The application must be motivated and supported by prescribed and other relevant documents. Any exemption may be granted for a limited period, may specify the maximum proportion of foreign nationals permitted, and may be withdrawn where the employer contravenes the Act or an exemption condition.

This will require workforce planning well in advance. Employers should not assume that an existing employment relationship will automatically fall outside a later quota. A quota notice may provide a compliance period, which could require the employer to restructure future recruitment, allow contracts to expire lawfully, pursue an exemption, or reduce reliance on foreign nationals over time.

Unlawful employment does not remove workers’ rights

The Bill expressly provides that an employee or worker employed in contravention of the new chapter may still enforce claims arising under legislation, a collective agreement, or a contract. Labour inspectors and bargaining council agents may, in appropriate circumstances, enforce claims on behalf of affected workers.

Employers will therefore not be able to rely on their own non-compliance, or on a worker’s immigration status, to avoid obligations relating to remuneration, minimum wages, contractual benefits, or other employment rights. An employer could face enforcement action for unlawfully employing the person while simultaneously being required to satisfy that person’s employment-related claims.

Stronger enforcement and much larger penalties

The Bill confirms that labour inspectors appointed under the Basic Conditions of Employment Act may monitor and enforce the Employment Services Act. It also provides for coordination between employment and labour authorities and immigration enforcement.

For contraventions of the proposed foreign-national employment provisions, including failures to comply with statutory employment requirements, applicable quotas, or visa-related work restrictions, the Labour Court may impose a fine of up to:

• R100 000 for a first failure to comply;
• R200 000 where the employer previously failed to comply with the provision during the preceding three years; and
• for a third or further failure, the greater of R1 million or 10% of the employer’s turnover in the previous financial year.

When determining a just and equitable fine, the court must consider any economic benefit obtained from the contravention. The general maximum fine for certain other contraventions listed in Schedule 3 would also increase from R50 000 to R100 000.

The turnover-based penalty is particularly significant for larger employers. Non-compliance will no longer be a low-level administrative risk and may become a material financial, governance, and reputational issue.

What employers should do now

Although the Bill may still change during the parliamentary process, employers should begin auditing their foreign-national workforce and recruitment systems. This should include verifying each employee’s right to work, checking whether the authorised work corresponds with the person’s actual duties, reviewing document-retention practices, and identifying positions for which proof of local recruitment or a skills transfer plan may be required.

Businesses should also determine whether they are likely to qualify as small employers, identify sectors and occupational categories that may be vulnerable to quotas, and ensure that human resources, recruitment and payroll systems can produce reliable workforce data.

Written submissions on the Bill must be sent to the Portfolio Committee on Employment and Labour for the attention of Mr Zolani Sakasa at employmentservicesbill@parliament.gov.za by no later than 16:00 on Friday, 6 November 2026. Stakeholders wishing to make an oral presentation during the public hearings should indicate this in their written submissions.

Employers and employer organisations should consider commenting on issues such as the practical meaning of an adequate local skills search, the content and duration of skills transfer plans, the treatment of existing employees when quotas are introduced, exemption criteria, and the administrative burden on smaller businesses.

View the Employment Services Bill Here.