Employment and Labour on employment of foreign nationals in South Africa
25 January 2022
The Department of Employment and Labour (DEL) has identified a gap in the general understanding and knowledge of services and programmes provided by the Department, more especially since the matter on employment of foreign nationals in South Africa featured extensively in the media recently and the Department under the leadership of Minister Thulas Nxesi felt it important to put into context the role of the Department of Employment and Labour and the existing legislative framework.
The rights of all workers within the Republic of South Africa are enshrined in the constitution. All labour laws accord the same standards and rights to citizens as well as foreign nationals employed elsewhere in our country.
The Department can attest that there are illegal recruitment practices happening. There are some employers who continue to employ especially undocumented foreign nationals and our citizens and continue to subject them to inferior labour standards, not declare them in their books and not cover them in terms of existing social protection measures such as the UIF, Pension Fund and Compensation Fund. These practices are illegal, they are unacceptable and it is something that is pre-occupying us daily in the Department of Employment and Labour.
The Employment Services Act, Act No 4 of 2014, Sections 8 and 9 are very specific in terms of the roles of the Department working with Home Affairs, in managing the employment of foreign nationals. The ES Act, compliments the Immigration Act 2002, in that it prohibits an employer from employing a foreign national in the territory of the Republic of South Africa prior to such a foreign national producing the applicable and valid work visa issued by the Department of Home Affairs. Section 9 provides for a list of prohibited acts in respect of foreign nationals, the offences and the applicable fines.
The Immigration Act 2002, Regulations require or prescribe that the DEL Public Employment Services and Inspection and Enforcement Services branches must issue benchmarking certificates that serve as a positive or negative recommendation to Home Affairs for the following work visa types:
Business Visa: S(15) Regulation 14(4):
General Work Visa (GWV): S(19)(3) Regulation 18 (3);
Corporate Visa (Cor. V)-for group applications: s(21); Regulation 20(1);
For both General and Corporate work visas, the benchmarking certificate recommendations must provide information with respect to the following:
that despite diligent search, the prospective employer has been unable to find a suitable citizen or permanent residence with qualifications or skills and experience equivalent to those of the applicant.
The applicant has qualifications or proven skills and experience in line with the job offer.
The salary and benefits of the applicant are not inferior to the average salary and benefits of citizens or permanent residents occupying similar positions in the Republic.
Business Visa: S(15) Regulation 14(4): DEL to confirm that an enterprise issued with a business visa has 60% of total staff complement as South Africans or permanent residents;
All applications for Department’s recommendations are processed through the Department’s online systems and any employer can also approach any of the Department’s 126 Labour Centres and more than 435 visiting points across the country.
“I would like to reiterate that, the only people who are well trained and have the legal mandate to enforce compliance with the Labour laws are the Department’s Inspectors”; said Minister Nxesi.
The Department currently have just above a thousand Inspectors looking after more than 2 million companies. The Employment and Labour inspectors are assisted by inspectors within the Minerals and Energy as we do not have jurisdiction in mines, and various inspectors under bargaining council registered with the Department.
The Department also have other bodies such as the CCMA who play a major role in terms of mediation and arbitration of disputes that arise in the process and the Labour Court. The Department, also participates in joint inspections that are organised with Police, Home Affairs, Road Traffic Management, and Customs that have proven to be more successful in dealing with various transgressions.
The Department has also identified a number of gaps or shortcomings when trying to finalise the prescribed Regulations as outlined in Section 8 of the ES Act. This has led to extensive research on other broad aspects relating to migration management and has since developed a new National Labour Migration Policy and proposed amendments to the existing ES Act. The proposals will be released for a 3 months’ public comment process before the end of February/March 2022 if Cabinet approves the Department’s submission. The social partners at NEDLAC will be afforded the opportunity to adjust the Policy and the Bill during May/June before we make a submission to Parliament.
On Policy interventions to assist the Department in migration management, South Africa’s National Labour Migration Policy (NLMP) aims to achieve a balance in four major areas that are very complex: -
The first is to address SA population expectations regarding access to work for South Africans, given worsening unemployment and perception or views that foreign nationals especially undocumented, are distorting labour market access. This practice is promoted by some employers who do not comply with existing labour legislation and continue to undermine existing minimum standards. The Employment and Labour NLMP will introduce maximum quota/s on the total number of documented foreign nationals with work visas that can be employed in major economic sectors such as Agriculture, Hospitality and Tourism, Construction just to name a few.
The NLMP will be complemented by Small Business intervention and enforcement of a list of undesirable sectors where foreign nationals cannot be allocated business visas and amendments to the Small Business Act to limit foreign nationals establishing SMME and trading in some sectors of our economy.
The Department of Home Affairs is also reviewing the Immigration Act, the Citizenship Act and the Refugees Act to ensure more alignment. The Home Affairs, Border Management Authority is also getting into action to secure porous borders and to allow for the orderly movement of people and other nationals across ports of entry only.
Secondly, higher Education and Training has released scarce and critical skills in high demand to provide guidance to all institutions to prioritise education and training interventions in those areas. The list will be used as a last resort, to allow foreign nationals in possession of the listed skills that the economy requires, and where job offers have been made, to be allocated work visas. The government will also impose various obligations on both the employer and the foreign national to transfer skills to locals and permits will be limited to specific durations.
Thirdly, South Africa is a signatory to international treaties and conventions governing the rights of migrants. All policies and interventions were developed within the ambit of the constitution of the Republic of South Africa and the Department will ensure the protection of migrant workers and their families in accordance with international standards and guidelines.
Fourthly, South Africa will also implement these initiatives within the context of its regional integration and cooperation imperatives that have already been agreed to at the Southern African Development Community (SADC) and African Union levels
The Department of Employment and Labour continues to play a significant role in reducing unemployment, poverty and inequality through a set of policies and programmes developed in consultation with social partners, which are aimed at:
Improved economic efficiency and productivity
Employment creation
Sound labour relations
Eliminating inequality and discrimination in the workplace
Alleviating poverty in employment
The Department of Employment and Labour will always strive for a labour market that is conducive to investment, economic growth, employment creation and decent work.
Issued by Sabelo Mali on behalf of Department of Employment, 25 January 2022
