04 October 2023
Most employers will be forgiven if they claim not to have heard of the Employment Services Act 4 of 2014 (“Act”). This legislation is certainly not as well-known as the Labour Relations Act, the Basic Conditions of Employment Act or even the Employment Equity Act. Yet, with major amendments proposed to the Employment Services Act in particular in respect of the employment of foreign nationals in South Africa, employers that make use of such employment should take note of the proposed amendments.
The proposed Employment Services Amendment Bill, 2021 (“Bill”) introduced last year in the National Assembly flows from a proposed National Labour Migration Policy (“Policy”) introduced by the Minister of Employment and Labour.
Although the Policy proposes several reforms and policy changes, specific aspects relating to the regulation of foreign nationals and their employment in South Africa have resulted in the Bill proposing changes to the Act.
Firstly, the Bill strongly restricts employers from employing foreign nationals in South Africa if the foreign national does not have a work visa, is not an asylum seeker with a right to work here, or is not allowed to work in South Africa in terms of any other law.
It further places quite stringent obligations on the employer to:
• Ascertain whether the foreign national is entitled to work in South Africa;
• Satisfy themselves that there are no other persons (i.e., citizens, permanent residents or refugees) in South Africa other than foreign nationals with the requisite skills to fill the vacancy;
• Prepare a skills transfer plan in respect of any position in which a foreign national is employed, although the Minister may exclude employers in certain sectors or categories of workers from the requirement to prepare a skills transfer plan;
• Employ such foreign national on terms and conditions of employment that are not inferior to those which would be provided to a citizen, permanent resident or refugee; and
• Retain copies of all documents reflecting that the foreign national is lawfully entitled to be employed in the Republic.
The Bill empowers the Minister to make regulations concerning –
• the measures that employers must take to satisfy themselves that there are no other persons in South Africa with suitable skills to fill a vacancy before recruiting a foreign national;
• requirements for employers to make use of public employment services or private employment agencies to assist employers in recruiting suitable employees who are citizens, permanent residents or refugees;
• requirements for the preparation of a skills transfer plan by employers in respect of a position in which a foreign national is employed;
• requirements for applying for an exemption to the Minister;
• the record that employers are required to keep in respect of foreign nationals in their employ.
Additionally, the Bill provides for the Minister to specify maximum quotas for the employment of foreign nationals by employers in a specific sector. This will effectively limit the number of foreign nationals that an employer can employ should a quota be issued for the employer’s sector or specific occupational category in a sector or even on a national or regional basis. The Bill does propose justifications for exceeding the quota if a position requires critical skills or the employer has applied for an exemption from the Minister.
The Bill also prohibits an employer from requiring or permitting a foreign national to perform any work that is not authorised by his or her visa or work permit or which is contrary to the terms and conditions of the visa or permit.
To note is that employers that contravene the provisions of the Bill may be subject to fines of up to R100,000 as well as further sanctions as permitted in terms of applicable legislation.
The Bill, in line with the proposed Policy, provides for a framework that will essentially tighter regulate and set limits on the employment of foreign nationals for specific sectors, occupational categories or even geographical regions. Employers making extensive use of foreign nationals should take note of these proposed provisions and monitor further developments for potential impact on your business.
Disclaimer: This article is the personal opinion/view of the author(s) and is not necessarily that of the firm. The content is provided for information only and should not be seen as an exact or complete exposition of the law. Accordingly, no reliance should be placed on the content for any reason whatsoever and no action should be taken on the basis thereof unless its application and accuracy have been confirmed by a legal advisor. The firm and author(s) cannot be held liable for any prejudice or damage resulting from action taken based on this content without further written confirmation by the author(s).