Employers in South Africa could face significantly higher fines and stricter requirements when hiring foreign nationals under proposed changes to the country’s...
Employers in South Africa could face significantly higher fines and stricter requirements when hiring foreign nationals under proposed changes to the country’s employment laws.
The Employment Services Amendment Bill, presented to Parliament’s Portfolio Committee on Employment and Labour by Employment and Labour Minister Nomakhosazana Meth, seeks to put South African job seekers first while protecting foreign nationals who are legally entitled to work in the country from exploitation.
Under the proposed legislation, employers would have to demonstrate that they had first tried to recruit suitably qualified South Africans before employing foreign nationals.
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The Bill would also give the Employment and Labour Minister powers to set limits on the employment of foreign nationals in specific sectors, occupations or geographical areas.
The proposed changes come as tensions continue to grow in South Africa over jobs and the employment of undocumented foreign nationals. The government has said the proposed legislation is intended to address concerns about employment while ensuring that the issue of illegal immigration is dealt with through lawful state enforcement.
“Illegal immigration must be handled through lawful state enforcement. Vigilantism must be rejected, but the concerns of South Africans must be acknowledged. The Employment Services Amendment Bill is contributing towards exactly that,” Meth said.
The Bill also contains measures aimed at protecting foreign workers from workplace exploitation. Foreign nationals who are employed unlawfully would still have the right to take action against employers if their labour rights are breached.
Under the proposed amendments, employers would also be prohibited from giving foreign workers jobs that are not covered by their visas or permits.
“Under the proposed amendments, foreign nationals employed in contravention of the law will retain the right to enforce employment-related claims against employers,” the Bill states.
The provision is intended to prevent employers from taking advantage of workers because of their immigration status. According to the proposed legislation, employers should not be able to pay foreign workers below regulated wages or impose working conditions that fall below South African labour standards and collective agreements.
The proposed Bill also introduces tougher financial penalties for employers who breach the rules. A first offence would attract a fine of R100 000, while a second offence would carry a fine of R200 000.
For a third offence, employers could face a fine of up to R1 million or 10% of the company’s gross income.
The proposed penalties represent a significant financial risk for employers who repeatedly fail to comply with the requirements governing the employment of foreign nationals.
Meth said the government was seeking to balance the need to prioritise employment opportunities for South Africans with the rights of foreign nationals who are legally entitled to work in the country.
“We are trying to strike a balance: to prioritise South Africans, while ensuring that those who are legally in the country and qualify in terms of our laws are also given an opportunity,” Meth said.
The legislation does not seek to remove the employment rights of foreign nationals who are legally permitted to work in South Africa. Instead, the proposed changes would place additional responsibilities on employers when recruiting foreign workers and introduce limits in certain sectors, occupations and geographical areas.
The Bill will now proceed to a public consultation process before the Portfolio Committee continues considering the proposed legislation.
The committee has agreed to invite written submissions from the public as part of its consideration of the Bill.
The proposed Employment Services Amendment Bill therefore remains subject to the parliamentary process and public consultation. Its provisions, including the proposed hiring requirements, ministerial powers and higher fines, are part of the legislation currently before Parliament’s Portfolio Committee on Employment and Labour.
