The government wants to introduce quotas on the total number of documented foreign nationals with work visas who can be employed in major economic sectors including hospitality and tourism, agriculture and construction.
Employment and labour minister Thulas Nxesi released the national labour migration policy for public comment on Monday. The proposed law will, among other things, ban foreigners from starting small businesses in certain sectors.
“We have researched extensively and benchmarked internationally in search of policy based on best practice,” said Nxesi. “It has become increasingly apparent, with the rapid expansion of international migration flows, that SA needs to develop appropriate policy effectively to manage this. SA is not immune to international migration trends, as well as attempts to exploit this for political gain.”
He said an effective labour migration policy is the government’s response. The public consultations will take a maximum of 90 days to allow for extensive and widespread reach of all the interested parties.
The policy aims to tackle South Africans’ expectations over access to work opportunities, given worsening unemployment and the perception that foreigners are distorting labour market access.
The policy, together with proposed legislation, will introduce quotas on the total number of documented foreigners with work visas that can be employed in major economic sectors such as hospitality and tourism, agriculture and construction.
Nxesi said the proposed policy will be complemented by small business intervention and enforcement of a list of sectors where foreigners cannot be allocated business visas, as well as amendments to the Small Business Act. These will limit foreigners in establishing small businesses and trading in some sectors of the economy.
Home affairs is reviewing 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.
Nxesi said his department, with the relevant authorities, is stepping up inspections to enforce existing labour and immigration legislation. Home affairs 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,” Nxesi said.
The policy 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 the rights of migrants, the minister said.
The proposed amendments to the Employment Services Act aim to limit the extent to which employers can employ foreign nationals in possession of a valid work visa. It also codifies the obligations of an employer engaging foreign workers to, among other things, employ only foreign nationals entitled to work in terms of the Immigration Act, the Refugees Act or any other provision; ascertain that the foreign national is entitled to work in SA in the relevant position; satisfy themselves that there are no South Africans with the requisite skills to fill the vacancy; prepare a skills transfer plan, where appropriate; employ foreign nationals on the same terms as local workers; and retain copies of relevant documentation.
The amendment bill proposes a framework that will enable the minister to set quotas for the employment of foreigners. 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.
Nxesi said the proposed amendments took into account SA’s labour market needs, in particular the need for critical skills not locally available, as well as the protection of migrant workers and their families, in accordance with international standards and guidelines. Regional integration and co-operation imperatives were also factored in.
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