The Employment Services Act, No. 4 of 2004 (Act) was passed by the National Assembly on Tuesday 4 March 2014. The Act is currently in line to be assented to by the President. It is envisaged it will be assented to together with the amendments to the Labour Relations Act, No. 66 of 1995 (LRA).
The Act repeals the Employment Services Provisions contained in the Skills Development Act, No. 97 of 1998. The purpose of the Act is to establish productivity within South Africa, decrease levels of unemployment in South Africa and provide for the training of unskilled workers.
While the Act has various mechanisms for improving unemployment levels in South Africa and training the workforce, only time will tell if these mechanisms will be successful.
One of the more publicised provisions of the Act is that it provides for the registration of private employment agencies, which includes recruitment agencies and temporary employment services, more commonly known as labour brokers.
The Act further provides for the creation of a public employment service which will be established and managed by the state. The rationale behind the creation of the public employment service is to provide state assistance to unemployed job seekers.
The public employment service will register job seekers and placement opportunities. The job seekers would then be matched to services and placement opportunities. Provision will be made for training of unskilled job seekers and career information.
Employers in certain industries may be required to register vacancies and specific categories of work with the Public Employment Service. Employers may also be required to interview individuals recommended by the public employment agency. Employers may also be required to pay license fees to assist in funding the Public Employment Service.
Naturally, as with all other employers and employment agencies, the Public Employment Service will have to comply with the Protection of Personal Information Act (POPI). One of the implications of POPI is that employers will be required to obtain consent from employees and prospective employees to process their personal information. The Public Employment Service will therefore be required to obtain such consent from prospective employees when assisting them in applying for positions with employers. Where the Public Employment Service has not obtained the consent or has obtained consent with insufficient scope, the employer would have to obtain the consent itself. This could be onerous on employers.
The Act also empowers the Minister of Labour to introduce regulations relating to the employment of foreign nationals. The purpose of the provision would be to protect the employment of South African citizens and permanent residents. The provision states that foreign nationals may not be employed without a valid work permit. A foreign national, in terms of the Act, may not be employed to do work which they are not authorised to perform in terms of their work permit. The Act states that the Minister of Labour may make regulations setting out processes to be followed by employers prior to employing a foreign national.
The Act further provides for Supported Employment Services for persons with disabilities. This would entail providing training to people with disabilities to promote their access to formal and self-employment.
The Act is a genuine attempt by the legislature to address unemployment levels. Whether the Act will be successful in its purpose will be dependent on the implementation of the provisions of the Act.