# summary

- Link: https://dearsouthafrica.co.za/employment-services-bill/summary/
- Published: 2026-10-16T13:52:33+02:00
- Author: dearSA

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The Minister of Employment and Labour has formally tabled the Employment Services
Amendment Bill [B16-2026] in the National Assembly as a Section 75 ordinary bill.
The proposed legislation overhauls the Employment Services Act 4 of 2014 by inserting
a comprehensive new Chapter 3A, establishing an aggressive regulatory framework 
to govern the employment of foreign nationals in the South African economy.

While the stated legislative intent is to protect domestic employment opportunities,
stimulate local capacity building, and halt the exploitation of vulnerable migrant
labour, the Bill introduces statutory quotas, pre-recruitment hurdles, and antitrust-
level penalties that fundamentally alter the hiring landscape for businesses across
the country.

### _Key Statutory Provisions Introduced by the Bill_

[Ministerial Quotas by Sector, Occupation, and Region (Section 12B)](https://dearsouthafrica.co.za/employment-services-bill/summary/#1738150189952-44103674-e29d31d9-c3be5520-25434c34-358e)

The Minister of Employment and Labour is empowered to publish binding notices in
the Government Gazette establishing maximum percentage quotas for the employment
of foreign nationals. These caps can be imposed across entire economic sectors, 
restricted to specific geographic regions, applied nationally, or targeted directly
at distinct “occupational categories”.

[Small Business Exclusion (Section 12B(3)(c) & (4))](https://dearsouthafrica.co.za/employment-services-bill/summary/#1738150189975-5d0623dc-47dc31d9-c3be5520-25434c34-358e)

Single-establishment private-sector enterprises employing fewer than 10 workers 
are statutorily exempt from ministerial employment quotas. However, this exemption
falls away if an employer operates more than one business or was established through
the division of an existing firm.

[Mandatory Pre-Recruitment Tests & Skills Transfer Plans (Section 12A(2))](https://dearsouthafrica.co.za/employment-services-bill/summary/#1738150854013-bb98f5fb-7d0931d9-c3be5520-25434c34-358e)

Before recruiting a foreign national, an employer must satisfy the Department of
Employment and Labour that no South African citizens, permanent residents, or refugees
possessing the requisite skills are available locally. Employers are also statutorily
required to prepare and implement a formal “skills transfer plan” for every position
occupied by a foreign national, unless explicitly excluded by ministerial determination.

[Severe Turnover-Linked Penalties (Section 49(2A))](https://dearsouthafrica.co.za/employment-services-bill/summary/#1738151172108-10076802-4d0031d9-c3be5520-25434c34-358e)

The Bill introduces escalating statutory fines administered by the Labour Court.
Fines are capped at R100,000 for a first contravention and R200,000 for a repeat
violation within three years. For two or more prior contraventions, the penalty 
jumps to the greater of R1,000,000 or 10% of the employer’s total annual turnover
in the previous financial year.

[Wage Parity & Protection for Unlawfully Employed Workers (Sections 12A(2)(d) & 12D)](https://dearsouthafrica.co.za/employment-services-bill/summary/#1792152417946-cb2dd9ca-e6dd)

Employers are strictly prohibited from hiring foreign nationals on terms or remuneration
inferior to South African citizens. To eliminate the commercial incentive of hiring
cheap, undocumented labour to undercut domestic wages, unlawfully employed workers
are granted statutory standing to enforce wage and contract claims through labour
inspectors and bargaining councils.

[Exclusion of Recognised Refugees and Asylum Seekers (Section 1)](https://dearsouthafrica.co.za/employment-services-bill/summary/#1792152461606-ff517be1-202c)

The definition of “foreign national” is amended to explicitly exclude permanent 
residents, recognized refugees, and asylum seekers. This guarantees that vulnerable
individuals fleeing persecution hold equivalent employment status to citizens and
cannot be subjected to ministerial quotas.

[Joint Workplace Immigration Inspections (Sections 49(1A) & 52(1)(o))](https://dearsouthafrica.co.za/employment-services-bill/summary/#1792152496947-e99d6742-76a3)

Basic Conditions of Employment Act (BCEA) labour inspectors are granted statutory
authority to monitor compliance and, via formal inter-ministerial agreements, cross-
enforce Section 38 of the Immigration Act alongside Department of Home Affairs inspectors.

[Support for the Diaspora and Migrant Welfare (Sections 2(2)(f) & 22(dA))](https://dearsouthafrica.co.za/employment-services-bill/summary/#1792152527312-91289762-b84b)

The Bill establishes a statutory mandate for the Department to protect South Africans
working temporarily abroad, establish a migrant worker welfare programme, and actively
facilitate the recruitment and reintegration of skilled South African expatriates
back into the domestic economy.

### _The Core Policy Dilemma: Protection vs Economic Reality_

The Bill exposes a significant policy contradiction within the Government of National
Unity:

[The Critical Skills Conflict](https://dearsouthafrica.co.za/employment-services-bill/summary/#1792152723086-051079b9-c8be)

The Department of Home Affairs (DHA) has prioritised economic growth by modernising
work visas and expanding the Critical Skills List under Section 19(4) of the Immigration
Act to attract scarce global expertise. Conversely, the proposed Section 12B empowers
the Department of Employment and Labour (DEL) to set restrictive quotas on those
very same occupational categories. This creates severe legal uncertainty where an
employer could hire an engineer or specialist holding a valid DHA Critical Skills
Visa, yet face Labour Court prosecution and a 10% turnover fine under Section 49(
2A) for exceeding an occupational quota.

[The Compliance Burden on the Formal Sector](https://dearsouthafrica.co.za/employment-services-bill/summary/#1792152723137-1ea34b31-51da)

While the legislation imposes extensive administrative reporting, exemption applications
under Section 49A, and crippling financial exposure on compliant, registered businesses,
it leaves the informal cash economy—where the exploitation of undocumented workers
and minimum-wage non-compliance are most prevalent—largely untouched.

### _Questions and answers_

[What is the Employment Services Amendment Bill [B16-2026], and what is its primary objective?](https://dearsouthafrica.co.za/employment-services-bill/summary/#1763554389233-fdb8fee6-6da45520-25434c34-358e)

The Employment Services Amendment Bill [B16-2026] is draft legislation introduced
in Parliament by the Minister of Employment and Labour to amend the Employment Services
Act 4 of 2014. Its primary objective is to regulate the employment of foreign nationals
in South Africa in alignment with the Immigration Act and Refugees Act, protect 
domestic employment opportunities, facilitate mandatory skills transfer, and extend
statutory fair labor standards to all workers.

[Does the Bill completely ban the employment of foreign nationals?](https://dearsouthafrica.co.za/employment-services-bill/summary/#1763554389265-aa09206a-77665520-25434c34-358e)

**No**. The Bill does not impose an outright ban on foreign workers. Instead, it
establishes a strict statutory framework under a newly inserted Chapter 3A, permitting
foreign nationals to work only if they possess valid visas issued under the Immigration
Act, permits under the Refugees Act, or rights granted by binding international 
agreements. It conditions this employment on sectoral quotas, pre-recruitment labor
market verifications, and skills transfer plans.

[Are small businesses and SMMEs exempt from the foreign worker quotas?](https://dearsouthafrica.co.za/employment-services-bill/summary/#1763554389298-fbc55a3c-817c5520-25434c34-358e)

Yes, small employers are statutorily excluded from ministerial hiring quotas under
Section 12B(3)(c). Section 12B(4) defines a “small employer” as any private-sector
business that employs fewer than 10 employees. However, this exemption applies only
if the enterprise does not operate more than one business and was not created through
the division or dissolution of an existing firm.

[How does the Bill define a "foreign national," and are refugees or asylum seekers subject to the quotas?](https://dearsouthafrica.co.za/employment-services-bill/summary/#1771840733358-e4b2d08e-b2264c34-358e)

Section 1 amends the definition of “foreign national” to mean an individual who 
is not a South African citizen, a permanent resident, a refugee, or an asylum seeker.
Because recognized refugees, asylum seekers, and permanent residents are excluded
from this definition, they are legally protected from hiring quotas and hold the
same statutory status as South African citizens regarding employment access.

[How do the ministerial employment quotas work in practice, and who determines them?](https://dearsouthafrica.co.za/employment-services-bill/summary/#1771840767171-e194ee95-bf824c34-358e)

Under Section 12B(1), the Minister of Employment and Labour may, after consulting
the Employment Services Board, issue a binding notice in the Government Gazette 
specifying maximum employment quotas for foreign nationals. Before publishing a 
final quota notice, the Minister must gazette a draft notice allowing the public
and interested parties at least 30 days to comment. The Employment Services Board
must review those public comments and advise the Minister before quotas are enacted.

[Can the Minister set different quotas for specific professions or provinces?](https://dearsouthafrica.co.za/employment-services-bill/summary/#1792153104919-108d5f37-53a2)

**Yes**. Section 12B(2) grants the Minister broad executive discretion to apply 
quotas across one or more specified economic sectors, within designated “occupational
categories” (such as software engineers or hospitality staff), on a nationwide basis,
or restricted to specific geographic regions or provinces.

[Does this Bill conflict with the Department of Home Affairs’ (DHA) Critical Skills List?](https://dearsouthafrica.co.za/employment-services-bill/summary/#1792153137751-c070dab7-0fce)

Operationally, yes. While Section 1 of the Bill defines “critical skills” in reference
to Section 19(4) of the Immigration Act, Section 12B allows the Minister of Employment
and Labour to impose caps on specific “occupational categories” regardless of whether
that profession appears on DHA’s Critical Skills List. Furthermore, Section 12A(
2)(b) requires employers to satisfy the Department that no local skills exist before
recruiting a foreign specialist, effectively reintroducing an individual labor market
test for professions the state had already gazetted as scarce. An employer could
recruit an engineer holding a valid Critical Skills Visa and still face prosecution
under Section 12B(8) if the business breaches the sector’s occupational quota.

[What mandatory steps must an employer take before recruiting a foreign national?](https://dearsouthafrica.co.za/employment-services-bill/summary/#1792153163834-1b0d734f-8f1a)

Under Section 12A(2), an employer must:

    - Ascertain that the candidate is legally authorized to work in South Africa
      and perform that specific role.
    - Satisfy themselves, in the manner prescribed by upcoming regulations, that
      there are no persons in the Republic (citizens, permanent residents, or refugees)
      with the necessary skills to fill the vacancy before recruiting abroad.
    - Prepare a formal skills transfer plan for the position.
    - Ensure the foreign national is hired on terms and conditions of employment
      no less favorable than those provided to South African citizens.
    - Retain verified copies of all relevant visas, permits, and entitlement documents.

[What is a "skills transfer plan," and can an employer be exempted from drafting one?](https://dearsouthafrica.co.za/employment-services-bill/summary/#1792153225686-6f9ce05f-af45)

A skills transfer plan is a formal compliance document detailing how an employer
will train South African citizens or permanent residents to eventually take over
the specialized functions performed by a foreign national. Under Section 12A(3) 
and (4), the Minister may issue a notice in the Gazette—on the advice of the Employment
Services Board—excluding specific categories of employers or occupational roles 
from the skills transfer requirement if preparing such a plan is deemed impracticable.

[What penalties do employers face for violating foreign employment rules or exceeding quotas?](https://dearsouthafrica.co.za/employment-services-bill/summary/#1792153254279-5d31a061-8b7f)

Section 49(2A) introduces escalating statutory fines imposed by the Labour Court
on application by the Director-General:

    - _First contravention:_ A fine not exceeding R100,000.
    - _Second contravention (within three years):_ A fine not exceeding R200,000.
    - _Two or more prior contraventions:_ A fine not exceeding the greater of R1,000,000
      or 10% of the employer’s total annual turnover in the previous financial year.

[How is the 10% turnover fine calculated, and is it discretionary?](https://dearsouthafrica.co.za/employment-services-bill/summary/#1792153379727-5581e5b0-cd77)

The 10% turnover fine is a maximum threshold reserved for repeat offenders who have
contravened Sections 12A, 12B(8), or 12E on two or more previous occasions. Section
49(2A)(c) mandates that the Labour Court, when determining an equitable fine, must
evaluate any economic benefit the employer derived from the unlawful employment.
However, because turnover is based on gross business revenue rather than net profit,
business formations argue this mimics antitrust competition penalties and poses 
an existential insolvency risk for mid-to-large enterprises.

[Who enforces these new rules, and will labor inspectors conduct immigration inspections?](https://dearsouthafrica.co.za/employment-services-bill/summary/#1792153403190-451d9a5a-831f)

Section 49(1A) empowers labor inspectors appointed under Section 63 of the Basic
Conditions of Employment Act (BCEA) to monitor and enforce the Act. Additionally,
Section 52(1)(o) and Clause 2.11.3 empower the Minister of Employment and Labour
to conclude formal agreements with the Minister of Home Affairs. This enables designated
labor inspectors to directly cross-enforce Section 38 of the Immigration Act (which
prohibits employing illegal foreigners) during routine workplace labor audits.

[Can employers pay foreign workers lower wages than South African workers?](https://dearsouthafrica.co.za/employment-services-bill/summary/#1792153432783-b9405791-d73b)

**No**. Section 12A(2)(d) makes it an explicit statutory violation to employ a foreign
national on terms, conditions, or remuneration inferior to those provided to South
African citizens performing similar work. This provision is designed to eliminate
the commercial incentive for businesses to hire foreign workers to suppress wages.

[If a foreign national is employed unlawfully, do they still have legal rights against the employer?](https://dearsouthafrica.co.za/employment-services-bill/summary/#1792153465300-9dccee22-a0c8)

**Yes**. Section 12D provides that an employee or worker hired in contravention 
of Chapter 3A retains the full legal right to enforce any statutory or contractual
claim against their employer. Labor inspectors are legally authorised to institute
recovery claims on the worker’s behalf for violations of the National Minimum Wage
Act or Basic Conditions of Employment Act, while bargaining council agents can enforce
collective agreements. Unscrupulous employers cannot use a worker’s unlawful or 
undocumented status as a legal shield to withhold earned wages.

[Can an employer apply for an exemption if they cannot meet the prescribed quotas?](https://dearsouthafrica.co.za/employment-services-bill/summary/#1792153505302-83e76a0a-c8d7)

**Yes**. Section 49A permits an individual employer, or an employers’ organization
registered under the Labour Relations Act acting on behalf of its members, to apply
to the Minister for an exemption from the foreign worker quota.

[What must accompany an application for exemption, and can it be revoked?](https://dearsouthafrica.co.za/employment-services-bill/summary/#1792153529169-faf5f41b-ee75)

Under Section 49A(1), an exemption application must contain a detailed commercial
motivation, prescribed supporting documents proving local talent unavailability,
and any additional information required by the Minister. If granted, the exemption
notice must state the specific validity period and the maximum proportion of foreign
nationals permitted. Section 49A(2)(c) allows the Minister to withdraw an exemption
at any time on good grounds, including non-compliance with accompanying conditions
or contraventions of the Act.

[Why participate through Dear South Africa instead of signing an online petition?](https://dearsouthafrica.co.za/employment-services-bill/summary/#1792153552777-b09885cc-f335)

Traditional online petitions group thousands of digital signatures onto a single
list, which Parliament and government departments classify as a single collective
submission. Dear South Africa operates on an individual legal mandate model. When
you use the platform, your comments are processed, formatted, and delivered as an
independent statutory representation sent directly to the National Assembly Portfolio
Committee on Employment and Labour.

[What legal obligation does Parliament have to consider public input?](https://dearsouthafrica.co.za/employment-services-bill/summary/#1792153585429-97342543-2f3e)

Sections 59(1)(a) and 72(1)(a) of the Constitution obligate Parliament to facilitate
meaningful public participation in its legislative processes. Furthermore, under
the Promotion of Administrative Justice Act (PAJA), executive and legislative decision-
makers cannot rubber-stamp predetermined outcomes; they are legally bound to apply
their minds to the substantive facts, economic evidence, and operational concerns
contained in individual public representations.

[Where will Dear South Africa submit the final consolidated campaign report?](https://dearsouthafrica.co.za/employment-services-bill/summary/#1792153614222-5d5b00ca-e266)

At the close of the campaign, Dear South Africa compiles all individual submissions,
demographic data, and categorical concern analyses into an audited Public Participation
Report. This formal document is officially tabled before the Chairperson and members
of the National Assembly Portfolio Committee on Employment and Labour, the Director-
General of the Department of Employment and Labour, and the Minister.

The draft Bill

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### _In the News_

    - Farmers Weekly — [Employers face tougher penalties for non-compliance when hiring labour](https://www.farmersweekly.co.za/agri-news/south-africa/employers-face-tougher-penalties-for-non-compliance-when-hiring-labour/)
    - Parliament — [Committee on Employment and Labour Receives Employment Services Amendment Bill](https://www.parliament.gov.za/press-releases/media-statement-committee-employment-and-labour-receives-employment-services-amendment-bill)
    - SABC News — [SAFTU backs the Employment Services Amendment Bill](https://www.sabcnews.com/sabcnews/saftu-backs-the-employment-services-amendment-bill/)
    - BusinessTech — [Government clarifies job laws for refugees and asylum seekers in South Africa](https://businesstech.co.za/news/government/878897/government-clarifies-job-laws-for-refugees-and-asylum-seekers-in-south-africa/)
    - EWN — [New Employment Services Amendment Bill seeks to regulate hiring of foreign nationals](https://www.ewn.co.za/2026/09/18/new-employment-services-amendment-bill-seeks-to-regulate-hiring-of-foreign-nationals)
    - IOL — [R100,000 fine for hiring a foreign worker? What the new Bill proposes as public comment opens](https://iol.co.za/business/jobs/2026-09-23-r100000-fine-for-hiring-a-foreign-worker-what-the-new-bill-proposes-as-public-comment-opens/)
    - Inside Politics — [Department rejects ‘false’ claims that asylum seekers will get same job rights as South Africans](https://insidepolitic.co.za/department-rejects-false-claims-that-asylum-seekers-will-get-same-job-rights-as-south-africans/)
    - CDH — [New developments regarding the Employment Services Amendment Bill](https://www.cliffedekkerhofmeyr.com/en/news/publications/2026/South-Africa/Immigration-Law/immigration-law-alert-13-august-new-developments-regarding-the-employment-services-amendment-bill)

**Riaan Roux.** Does the Employment Services Amendment Bill put asylum seekers on
the same footing as South Africans for jobs? A widely shared video says asylum seekers
will tick the same box as black South Africans. People on X ask whether a company
could hire only asylum seekers and stay inside the new quotas. The Department of
Employment and Labour calls these myths.

**SABC News.** The Portfolio Committee on Employment and Labour is considering legislation
that will empower the Minister to set quotas for the employment of foreign nationals
by sector, occupation or area.

**SABC News.** Members of the public have until November 6 to comment on a proposed
bill that could see employers paying steep fines for employing unregistered foreign
nationals, with fines as high as R100 000 per worker. The Employment Services Amendment
Bill is part of government’s efforts to prioritise South African jobseekers and 
tighten enforcement against illegal immigration.

**Dept. of Employment and Labour.** Departmental Spokesperson Teboho Thejane separates
fact from fiction and explains what the Employment Services Amendment Bill really
seeks to achieve.

**SABC News.** The proposed legislation aims to increase penalties against employers
who employ undocumented foreign nationals as well as introduce quotas to the employment
of foreign nationals in various sectors. COSATU anticipates that the proposed legislation
will take about a year or two to finalise. Calling on government to have capacity
to enforce the proposed legislation by sticking to its commitment to increase the
number of labour inspectors. We are now joined via video link by Douglas Nelson 
Chief Operating Officer Moolla Attorneys.

**Al Ansaar Media.** South Africa’s unemployment crisis has reignited debate around
the employment of foreign nationals and the government’s proposed changes to labour
legislation. In this edition, we unpack the Employment Services Amendment Bill, 
B16 of 2026, which seeks to amend the Employment Services Act of 2014 and introduce
a broader framework for regulating the employment of foreign nationals in South 
Africa.

### _Statements and media releases_

Click on a logo to view.

![COSATU-logo](https://cdn.dearsouthafrica.co.za/wp-content/uploads/2022/10/16161244/
COSATU-logo-small.jpg "COSATU-logo-small")

Want to display your organisation’s statement? [Click here. ](https://dearsouthafrica.co.za/employment-services-bill/summary/ esb@dearsouthafrica.co.za?subject=org info for Employment Services Bill info page)

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### COSATU

### COSATU welcomes government’s tabling the Employment Services Amendment Bill before Parliament

September 26, 2026
 The Congress of South African Trade Unions (COSATU) welcomes
the African National Congress led government’s tabling of the Employment Services
Amendment Bill at Parliament, where it is now before the Portfolio Committee on 
Employment and Labour. The Federation engaged extensively on the Bill at Nedlac 
and looks forward to the Bill’s processing and adoption by Parliament and implementation
by the Department of Employment and Labour.

The Bill provides a long overdue response to the flood of undocumented migrant labour
into the economy over the past decade. The Bill enables the Minister for Employment
and Labour to set limits on the number of documented migrant workers that can be
employed in a workplace, region, economic sector or profession. These limits are
critical for an economy battling to cope with extremely high and rising unemployment
levels of 43.8% overall and more than 60% for youth.

We have seen countless unscrupulous employers, in particular in agriculture, fuel
stations, restaurants, construction amongst others; maliciously exploiting the desperation
of undocumented migrant labour as their vulnerability opens them to wildly abusive
exploitation. The Bill correctly affirms the inalienable labour rights of all workers,
irrespective of origin, and increases penalties for employers who break the law.

It is urgent that funding for the Department of Employment and Labour’s recruitment
drive for an additional 10 000 labour inspectors be prioritised and honoured as 
this would provide a decisive boost to efforts to crack on such criminal violations
of South African and migrant workers’ legally binding labour rights.

It is crucial that the Critical Skills List be continuously reviewed by government
with business and labour at Nedlac to ensure that it is correctly positioned to 
attracting scarce skills to South Africa, to upskilling local workers and to ensuring
unemployed South Africans are prioritised for training with such needed skills.

Whilst migration is correctly ingrained with the history of humanity and a rich 
part of South Africa’s DNA, current levels are unsustainable given our dangerously
high unemployment rate. The Bill seeks to find the correct balance and ensure the
state is capacitated to set limits and protect the needs of workers. These are needed
and their implementation must be expedited. A balanced approach to migration, in
particular for our neighbouring states with whose fate South Africa’s is intertwined,
is necessary. This is crucial if we are to avoid the periodic outbreaks of unacceptable
xenophobic, Afrophobic and vigilante violence.

Issued by COSATU

Matthew Parks (COSATU Parliamentary Coordinator)

Mobile: 082 785 0687

Email: matthew@cosatu.org.za