In response to the Gauteng government’s appeal for businesses to prioritize local employment, the legal entity Wright Rose-Innes has shed light on the national government’s strategies to implement such measures.
Central to this initiative are the suggested modifications to the Employment Services Act. Should these changes be ratified, the employment and labour minister would gain the authority to dictate the maximum number of foreign workers a business can employ.
“The Employment Services Act 4 of 2014 might not be as familiar to many as the Labour Relations Act or the Basic Conditions of Employment Act. However, given the significant changes being proposed, especially concerning the hiring of foreign nationals in South Africa, it’s crucial for employers to be aware,” stated the firm.
The Employment Services Amendment Bill of 2021, presented to the National Assembly the previous year, is a derivative of the National Labour Migration Policy introduced by the Minister of Employment and Labour. While the policy encompasses a range of reforms, particular emphasis has been placed on the employment of foreign nationals in South Africa, leading to the Bill’s proposed alterations to the Act.
Key provisions of the Bill include:
- Employment Restrictions: Employers are prohibited from hiring foreign nationals in South Africa unless the individual possesses a valid work visa, has asylum seeker status with work rights, or is permitted to work under any other South African law.
- Employer Obligations: Employers must:
- Verify the foreign national’s right to work in South Africa.
- Ensure no other qualified individuals (citizens, permanent residents, or refugees) are available for the job.
- Develop a skills transfer plan for roles filled by foreign nationals, though some sectors or worker categories might be exempted.
- Offer foreign nationals employment terms comparable to those given to citizens, permanent residents, or refugees.
- Maintain documentation proving the foreign national’s legal employment status in the country.
- Ministerial Powers: The Bill grants the Minister the authority to:
- Define steps employers should take to ensure local candidates are unavailable before hiring a foreign national.
- Mandate the use of public or private employment agencies to aid in recruiting citizens, permanent residents, or refugees.
- Set guidelines for the creation of a skills transfer plan.
- Establish criteria for exemption applications.
- Determine the records employers must maintain regarding their foreign employees.
Furthermore, the Bill allows the Minister to set quotas on the employment of foreign nationals in specific sectors. This means businesses could face restrictions on the number of foreign employees they can hire based on their industry, job type, or even region. However, exceptions might be made if a role demands specialized skills or if an employer secures an exemption from the Minister.
Employers are also barred from allowing foreign nationals to undertake tasks not authorized by their visa or work permit.
It’s essential to highlight that businesses violating the Bill’s stipulations could face penalties up to R100,000, along with other potential legal repercussions.
In essence, the Bill, aligned with the proposed Policy, seeks to more stringently regulate the hiring of foreign nationals, targeting specific industries, job categories, or even regions. Businesses heavily reliant on foreign workers should remain vigilant of these proposed changes and their potential implications.
