On 28 February 2022, the minister of employment and labour published the Draft National Labour Migration Policy (the Draft Policy) and the Employment Services Amendment Bill (the Bill) for public comment.
Employers who rely on foreign nationals as part of their workforce should familiarise themselves with the proposed new laws, which may make it more difficult to hire foreigners in future. Any comments on the Draft Policy or Bill should be sent to [email protected] by 29 May 2022.
The Bill and the Draft Policy were developed, among other things, to provide the legal foundation and framework within which to regulate the employment of foreigners, while providing for their protection. One of the key takeaways from the Bill and the Draft Policy is that the Department of Employment and Labour will take a more active role in matters relating to the employment of foreigners, as well as the emigration of South Africans seeking employment abroad.
The Draft Policy aims to prioritise, among other things:
- attracting and retaining skills to or in South Africa;
- imposing quotas to limit the number of foreigners employed in South Africa to protect employment opportunities for South Africans;
- prioritising certain sectors that need urgent critical skills;
- improving migrant labour conditions of employment; and
- improving social protection of migrant labour.
The Bill is intended to amend the Employment Services Act 2014 (the Act) to, among other things, more strictly regulate the employment of foreign nationals in South Africa by inserting a new Chapter 3A, which will impose the following duties on employers that employ foreign nationals:
- employers must ensure that foreign nationals are entitled to work in South Africa and perform the work for which they are employed;
- before recruiting a foreign national, steps must be taken by employers to satisfy themselves that only a foreign national has the skills that are requisite for the vacancy in question;
- they must prepare a skills transfer plan in respect of any position in which a foreign national is employed:
- they must employ foreign nationals on terms and conditions that are not inferior to the terms and conditions that would be provided to a South African citizen, permanent resident or refugee; and
- they must retain copies of all documents that reflect that the foreign national is lawfully entitled to be employed in South Africa.
The Bill also empowers the minister, by way of notice, to set the maximum quotas for the employment of foreign nationals in any sector. The notice, to be published in the Government Gazette, must specify the period within which existing and newly established employers must comply with the quotas. Small employers are, however, exempt from the quotas.
The Bill provides for exceptions to the maximum quotas and allows an employer to employ more foreign nationals if:
- a foreign national is employed to fill a position in respect of which critical skills are required (as determined in accordance with the provisions of the Immigration Act 2002); or
- the employer has applied for an exemption from the applicable quota in the prescribed form, and the exemption has been granted by the minister.
Any person who employs or engages an employee or worker in contravention of the Act may be liable for a fine. In addition to this, an employee or worker is entitled to enforce any claim that they may have against the employer or any person who is otherwise liable in terms of any statute, collective agreement or the agreement that the parties have entered into. The claim may also be enforced on behalf of an employee or worker by a labour inspector or bargaining council agent.
The Bill further provides for the minister to make regulations concerning the employment of foreign nationals that may include:
- the measures that employers must take to satisfy themselves that there are no other persons in South Africa with the requisite skills to fill a vacancy, before recruiting a foreign national;
- the requirement for employers to make use of public or private employment services or agencies to assist with the recruitment of suitable employees or workers who are South African citizens, permanent residents or refugees;
- requirements for the preparation of a skills transfer plan for any position in which a foreign national is employed;
- the criteria and procedure for applying for an exemption from any of the provisions of Chapter 3A; and
- the records that an employer is required to keep.
The Bill also seeks to expand the scope of the Act to cover both employees and "workers" and introduces the concept of a "digital labour platform", which is "an electronic entity that enables the provision of work or services by a person to any other person in the Republic".
In terms of the Bill, for purposes of the Act, a digital labour platform is an employer and any person who provides work or services in the Republic to another person by means of a digital labour platform is a worker if:
- the payment for, or terms and conditions of, such work or services are determined by the digital labour platform; and
- the digital labour platform remunerates the worker.
The proposed amendments to the Act raise some complex issues and are already receiving strong opposition from certain groups. It is essential for employers to monitor this issue as it develops.
For further information on this topic please contact Rosalind Davey at Bowmans Law by telephone (+27 21 480 7800) or email ([email protected]). The Bowmans Law website can be accessed at www.bowmanslaw.com.