Policy Watch | Employing Foreign Nationals?

Employing Foreign Nationals? Parliament is rewriting the rules.

A significant new piece of proposed legislation entered Parliament at the end of May. The Employment Services Amendment Bill [B16-2026] was introduced in the National Assembly on 29 May 2026, and it proposes the most comprehensive regulation of the employment of foreign nationals that South African labour law has yet contained.

The Bill amends the Employment Services Act of 2014. It follows an initial draft published for public comment in 2022, and it arrives with clear intent. According to the government’s own summary, the proposed measures are aimed at ensuring that foreign recruitment takes place only where genuine skills shortages exist, while strengthening deterrents against the unlawful employment of foreign nationals.

The Bill is not yet law. It must move through committee consideration, public participation, both houses of Parliament and presidential assent, and regulations must follow before its provisions can be enforced. What it already provides, in the same way the Labour Law Amendment Bill did in February, is a clear statement of regulatory direction. For members who employ foreign nationals in any capacity, the time to understand it is now.

Bill: Employment Services Amendment Bill [B16-2026]

Introduced: National Assembly, 29 May 2026

Amends: Employment Services Act, 2014

Core proposal: A new Chapter 3A comprehensively regulating the employment of foreign nationals, replacing sections 8 and 9 of the current Act

Also proposes: Expanded definitions of ‘worker’ and ’employer’; extension of the Act to private employment agencies not operating for gain; expanded Employment Services Board functions; governance of Supported Employment Enterprises; strengthened enforcement

Status: In the parliamentary process; a Portfolio Committee workshop on the Bill and the National Labour Migration Policy took place on 24 June 2026; not yet law

Source: Parliament of South Africa, Bill B16-2026 (parliament.gov.za); SAnews, 10 June 2026; Parliament media alert, 23 June 2026

What the Bill proposes for foreign national employment

The heart of the Bill is the proposed Chapter 3A. For the purposes of the Act, a foreign national is defined as an individual who is not a South African citizen, permanent resident, refugee or asylum seeker. The chapter’s main proposals, as introduced, are the following.

Verification of the right to work.

Employers must ensure that a foreign national is entitled to work in South Africa and entitled to perform the specific work for which they are employed. Checking that a visa exists will not be enough; the authorisation must match the role.

A labour market check before recruitment.

Before recruiting a foreign national, an employer will be required to satisfy itself, in a manner to be prescribed by regulation, that there are no suitably qualified South African citizens, permanent residents, refugees or asylum seekers available to fill the position.

Skills transfer plans.

Employers will be required to prepare a skills transfer plan in respect of positions in which foreign nationals are employed, unless exempted or where this is determined to be impractical under the framework the Minister prescribes.

Ministerial power to set quotas.

The Bill empowers the Minister of Employment and Labour, after consulting the Employment Services Board and considering public comment, to set quotas for the employment of foreign nationals by economic sector, occupational category and geographical area, in line with the National Labour Migration Policy. No quotas exist yet and no percentages have been announced. The Bill creates the power; the numbers would come later, by regulation.

The critical skills carve-out falls away.

Legal commentators, including Bowmans, have highlighted that the Bill removes the previous carve-out for critical skills. Employers in sectors reliant on foreign nationals with critical skills would need to apply for an exemption if they wish to exceed any applicable quota.

Substantially higher penalties.

The Bill proposes a graduated penalty regime, with fines of up to R1 million or 10% of turnover for repeat offenders. It also makes clear that a foreign national employed in contravention of Chapter 3A retains the right to enforce employment claims against the employer. Non-compliance, in other words, creates liability in two directions at once: toward the state and toward the employee.

Source: Bowmans, Employment Services Amendment Bill, 2026 introduced in Parliament, June 2026; Bizcommunity, 9 June 2026; SAnews, 10 June 2026

The definitions widen the net

Two definitional changes deserve attention beyond the foreign national provisions. The Bill adopts a broad definition of ‘worker’, aligned with the National Minimum Wage Act: any person who works for another and who receives, or is entitled to receive, any payment for that work, whether in money or in kind. The definition of ’employer’ is correspondingly expanded to any person who remunerates, or is liable to remunerate, an employee or a worker.

The 2022 draft’s provisions deeming digital labour platforms to be employers have been removed from the 2026 Bill. The broad worker definition nonetheless means that persons engaged in non-traditional arrangements may fall within the Act’s scope, and members using casual, informal or task-based arrangements should assess where those arrangements would sit under the proposed definitions.

What the Bill is not

It is worth being precise about the Bill’s limits, because coverage of it has generated understandable anxiety. The Bill does not amend the Immigration Act, does not abolish or alter work visas, and does not change the immigration status of anyone currently in the country lawfully. It operates in labour law, adding employer-side duties alongside the existing immigration requirements. An employer whose foreign national employees hold valid work authorisation is not rendered non-compliant by the Bill’s introduction. What changes, if the Bill is enacted, is the documentation, verification and planning burden that sits with the employer.

Establish an accurate register of all foreign nationals in your employ, with copies of their work authorisations, and verify that each authorisation covers the actual work performed
Retain the recruitment records for positions filled by foreign nationals, since the ability to show a genuine search of the local labour market is likely to become an evidentiary requirement
Consider what a skills transfer plan would look like for roles held by foreign nationals, particularly scarce-skill roles, so that the requirement does not arrive against a blank page
Review casual and non-traditional working arrangements against the proposed worker and employer definitions
Follow the Bill's parliamentary progress, and raise sector-specific concerns through (SA)UEO so that the employer voice is present in the public participation process

STATUS UPDATE | The Labour Law Amendment Bill

In Edition III we covered the Labour Law Amendment Bill in detail: the proposed doubling of severance pay, the regulation of on-call and zero-hours work, probation reform, the reinstatement cap for high earners, the expanded definition of employee, and the balance of its provisions.

The position has not materially changed. The Bill, published in Government Gazette No. 54220 on 26 February 2026, remains in the pre-parliamentary process and has not yet been tabled. The Minister of Employment and Labour confirmed during the May 2026 budget vote that the Bill remains on track, describing its aims as strengthening worker protection, improving dispute resolution, reducing unnecessary compliance burdens for small businesses and aligning legislation with court judgments.

Our guidance from Edition III stands: use the time. The next public milestone will be the tabling of the Bill in Parliament and the scheduling of Portfolio Committee hearings, at which point a further public participation window opens. We will report on it the moment it moves.

Source: Government Gazette No. 54220, 26 February 2026; Minister of Employment and Labour, Budget Vote 2026, as reported by GoLegal, 21 May 2026

Final consideration

Taken together, the two Bills now in the pipeline signal a labour regulation environment that is becoming more demanding in both directions: more protective of workers, and more exacting of employers on documentation, verification and process. Neither Bill is law, and both may change. What will not change is the advantage held by employers whose records are already in order when enactment arrives. That advantage is available to every member, and it costs attention rather than money.

Members with questions about their foreign national employment arrangements, or who wish to contribute to (SA)UEO’s engagement on either Bill, are encouraged to contact their organiser or info@saueo.co.za.

Sources:

Employment Services Amendment Bill [B16-2026], Parliament of South Africa (parliament.gov.za); SAnews, Bill proposes foreign worker quotas, tougher employer penalties, 10 June 2026; Bowmans, South Africa: Employment Services Amendment Bill, 2026 introduced in Parliament, June 2026; Bizcommunity, What you need to know about the Employment Services Amendment Bill, 9 June 2026; Parliament of South Africa, media alert on the Portfolio Committee workshop of 24 June 2026; Labour Law Amendment Bill, Government Gazette No. 54220, 26 February 2026; GoLegal, The Draft Labour Laws Amendment Bill is on track, 21 May 2026.