The Minister of Employment and Labour has recently released the Draft National Labour Migration Policy and the Employment Services Amendment Bill for public comment. In short, the former addresses issues relating to labour migration governance and management in South Africa. It goes hand in hand with the 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 migrant rights. Should these proposals come into effect, the labour market as well as Temporary Employment Service (TES) companies and their clients will need to navigate the relevant regulations.
“In our industry, it is often the case that we have to employ foreign nationals due to the specific skillsets that they bring to the industry and the sector,” says Albie Rheeder, who is part of the Temporary Employment Services Division (TESD). The TESD provides TES companies with a stakeholder forum to regulate this specialised industry to serve the needs of their clients and to protect the rights of their candidates in a legally compliant environment. Rheeder continues that TES providers who operate in this space must comply with the current requirements. “Currently, we know that certain categories of workers in our industry possess specific skills that are listed on the scare skills list, and it goes as a given that we as the employers must comply and ensure that these employees have valid work permits and that the work they are performing for the client matches the work permit issued to the individual.”
The proposed amendments through the addition of Chapter 3a (of the Employment Services Amendment Bill?) clarifies the processes that need to be followed when employing foreign nationals. “What is interesting is how the TES provider and the client will manage the skills transfer plan,” adds Rheeder. “How would they justify that the foreign employee is not taking a possible role that a South African National could fulfil?”
These rules are not unfamiliar. It is a matter of how the government enforces the legislation, as it could be said that the government are not able to enforce the current labour laws that many deem to be adequate protection for employees, irrespective of their nationalities.
TES providers and clients need to be aware of the additional administrative responsibilities should the bill be passed in its current form. They must comply with the requirements and keep accurate records of all foreign employees as well as plan for possible limitations of the quota system by introducing skill-transfer programmes for locals who need to be trained or upskilled in specific work categories.
