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Employment Services Amendment Bill

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The Policy covers the following broad, but inter-related areas where policy gaps exist:

  • Labour migration governance and management
  • Data for evidence-based policy monitoring and evaluation
  • Labour migration to South Africa, and
  • Labour migration from South Africa.

The proposed National Labour Migration Policy aims to achieve a balance across four areas:

  • The first is to address South Africans’ expectations regarding access to work opportunities, given worsening unemployment and the perception that foreign nationals are distorting labour market access. The NLMP, together with proposed legislation, will introduce quotas 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 etc.
  • The NLMP will be complemented by Small Business intervention and enforcement of a list of sectors where foreign nationals cannot be allocated business visas and amendments to the Small Business Act to limit foreign nationals establishing SMMEs and trading in some sectors of the economy.
  • The Department of Home Affairs is also reviewing current legislation and strengthening the Border Management Authority to secure porous borders and to allow for the orderly movement of people and other nationals through ports of entry only.
  • From the side of my Department, together with all relevant authorities we are stepping up inspections to enforce existing labour and immigration legislation.
  • Secondly, Higher Education and Training has released a list of 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 and refugees. All policies and interventions were developed within the ambit of the constitution of the Republic of South Africa and government 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 National Labour Migration Policy goes hand in hand with a proposed Employment Services Amendment Bill -providing a policy framework and the legal basis to regulate the extent to which employers can employ foreign nationals in their establishments while protecting the rights of migrants.

The proposed amendments to the Employment Services Act (of 2014) aims to limit the extent to which employers can employ the number of foreign nationals in possession of a valid work visa in their employment and codifies the obligations of an employer engaging foreign workers to amongst others:

  1. only employ foreign nationals entitled to work in terms of the Immigration Act, the Refugees Act or any other provision;
  2. ascertain the foreign national is entitled to work in the Republic in the relevant position;
  3. satisfy themselves that there are no South Africans with the requisite skills to fill the vacancy;
  4. prepare a skills transfer plan, where appropriate;
  5. employ foreign nationals on the same terms as local workers; and
  6. retain copies of relevant documentation.

The proposed Amendment Bill proposes a framework that will enable the Minister to set quotas for employment of foreign nationals. A quota may apply in respect of a sector of the economy, an occupational category or a geographical area. The Minister will establish a quota in a sector after consultation with the Employment Services Board and after considering public comments.

In summary, National Labour Migration policy aims to achieve a balance between the following:

  1. The population’s expectations regarding accessibility to work for South Africans, given worsening unemployment and a perception that undocumented foreigners are distorting labour market access;
  2. South Africa’s labour market needs, in particular the need for critical skills not locally available;
  3. The protection of migrant workers and their families, in accordance with international standards and guidelines; and
  4. Regional integration and cooperation imperatives.


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