Shared Care and Fair Work: Perspectives on the BCEA Amendment Bill

On 26 February 2026, the Minister of Employment and Labour published the Labour Law Amendment Bill (“Bill”), proposing wide-ranging changes to, inter alia, the Labour Relations Act and the Basic Conditions of Employment Act (“BCEA”).

A notable new inclusion in the Bill is the inclusion of proposed amendments to the parental leave provisions of the BCEA in order to give effect to the Constitutional Court’s ruling in Van Wyk v Minister of Employment and Labour. A further interesting amendment which has been retained from the prior 2025 draft Bill (“Draft Bill”) with slight amendment, are proposed amendments aimed at the regulation of “zero-hour” contracts. 

Constitutionally‑Aligned Parental Leave Rights

The proposed amendments to the parental leave regime in the BCEA, responds directly to long-standing concerns regarding the unequal distribution of parental rights and the outdated presumption that caregiving responsibilities fall primarily and/or exclusively on birthing mothers, which the Constitutional Court sought to address in Van Wyk. 

Taking guidance from Van Wyk, the proposed amendments introduce a flexible entitlement: four months of parental leave if one employee claims the leave; or four months plus ten days if both parents claim their entitlement, provided one parent does not take more than four months. 

In terms of the Bill, working parents, regardless of parental category, may share the four months plus ten days parental leave by agreement (subject to a birthing parent not being permitted to work for six weeks after the birth, unless certified fit by a medical practitioner or a midwife). Employees with different employers who intend to use parental leave, must submit an agreement in writing to their employers, indicating how they will share the leave.  If they cannot agree, the birthing parent is entitled to elect to take the full four months, leaving the other parent with ten days; or the birthing parent may take less than four months, leaving the balance to the other parent. The Bill therefore seeks to provide a solution to break any deadlock that may ensue by allowing the birthing parent to decide where agreement cannot be reached. For adoptive or commissioning parents who cannot agree however, leave must be apportioned as close as possible to half of the total four months and ten days for each parent. 

Given the extension of parental rights and the impact this is likely to have on workplaces, the Bill provides that an employee, excluding a female employee giving birth, may not take parental leave more than once in a twelve‑month period. 

Additionally, parental leave for adoption is extended to cover parents adopting children up to six years of age, encouraging the idea that bonding and integration needs do not end at infancy and is no longer capped at two years of age.

Overall, these proposed amendments together with the commensurate proposed amendments to the Unemployment Insurance Fund Act, give practical effect to the policy direction adopted in Van Wyk and thereby giving effect to the recognition of diverse family structures, stepping closer to eliminating assumptions about who the “primary caregiver” must be, and creating a stepping stone towards a system that recognises the importance for all parents, whether biological, adoptive, or commissioning, to establish early bonds with their children.

Regulation of Zero‑Hour Contracts

The Draft Bill introduced proposed amendments aimed at regulating “zero-hour” contracts, which has been substantially retained in the Bill, however with slight changes.

While employers are not required to guarantee minimum hours of work (which was previously included in the Draft Bill), they must include in the written particulars of employment the maximum hours an employee may work, the period during which the employee must be available, and reasonable notice periods for reporting to work and for cancellations.

Significantly, the test set out to determine the reasonableness of the notice periods for reporting for work and for cancellation of work has been narrowed down in the Bill. The Draft Bill included “the nature of the employee’s work and employment arrangements” as a factor to be considered in determining the reasonableness of the notice, however this has been removed in the Bill, leaving the original factors to be considered. Namely, the nature of the employer’s business, the employer’s ability to control or foresee the circumstances impacting such notice and the effect of the cancellation on the employee. The requirement for reasonable notice ensures that employees can make sufficient personal arrangements and avoid the potential prejudice they could face when they are unable to make alternate arrangements to attend work on short notice. 

Notably, the proposed amendments appear to closely align with the approach taken in the UK and New Zealand. By way of example, the Bill prohibits employers from imposing conflict of interest-based restrictions on zero‑hour employees unless justified by genuine operational reasons, which reasons must be expressly provided for in the employment contract. Genuine reasons in this regard would include protecting the employer’s commercially sensitive information, intellectual property rights, commercial reputation and where a conflict of interest cannot be managed in a less onerous manner.

Practical Implications for Employers

Until such time as any changes come into effect, employers will need to ensure that their parental leave policies are aligned to the interim provision set out in Van Wyk. The proposed amendments to the parental leave regime may be used to guide employers in respect of their workplace policies, to cater for the statutory position on parental leave.

With regards to the proposed regulation of “zero-hour” contracts of employment, we may see a significant change in the employment landscape and a shift from less fixed-term employment engagements and a higher use of “zero-hour” contracts. This could possibly create greater employment security but could also open up this category of employees and employers alike to a new set of challenges.