New laws to restrict the hiring of foreign workers in South Africa – with R100,000 fines on the table

New laws to restrict the hiring of foreign workers in South Africa – with R100,000 fines on the table. Government plans to introduce new employment quotas on foreign workers, and companies who won’t keep to these quotas will be fined R100 000.

The proposed Employment Services Amendment Bill, 2021 introduced last year in the National Assembly flows from a proposed National Labour Migration 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.

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The policy said no one may employ a foreign national to work in South Africa unless that foreign national “has the right to be so employed in terms of a visa issued under the Immigration Act”, is an asylum seeker or is allowed to work in South Africa by way of international agreement.

“Any person who employs a foreign national to work within the territory of the Republic of South Africa must employ such a foreign national on terms and conditions of employment that are not inferior to those which would be provided to a South African citizen, permanent resident or refugee,” the document said.

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