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South Africa labour department expresses concern at illegal recruitment practices

Christian Fernsby |
The Department of Employment and Labour (DEL) has noted with concern, illegal recruitment practices in the labour market.

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“The department can attest that there are illegal recruitment practices happening. There are some employers who continue to employ especially undocumented foreign nationals and citizens who continue to be subjected to inferior labour standards," the department said in a statement.

Some employers do not declare them in their books and do not cover them in terms of existing social protection measures such as the UIF, Pension Fund and Compensation Fund.

“These practices are illegal, they are unacceptable and it is something that is pre-occupying us daily in the Department of Employment and Labour."

The DEL reiterated that the rights of all workers within the Republic of South Africa are enshrined in the Constitution and all labour laws accord the same standards and rights to citizens as well as foreign nationals employed elsewhere in the country.

The department said it had identified a gap in the general understanding and knowledge of services and programmes it provides, more especially since the matter on employment of foreign nationals in South Africa featured extensively in the media recently.

New National Labour Migration Policy

To address these challenges, the department has since developed a new National Labour Migration Policy and proposed amendments to the existing Employment Services Act.

The proposals will be released for a three-month public comment process before the end of February/March 2022 if Cabinet approves the Department’s submission.

The social partners at National Economic Development and Labour Council (Nedlac) will also be afforded the opportunity to adjust the Policy and the Bill during May/June before submission to Parliament.

On policy interventions to assist the department in migration management, South Africa’s National Labour Migration Policy (NLMP) aims to achieve a balance in four major complex areas.

The first is to address the South African population expectations regarding access to work for South Africans, given the worsening unemployment and perception or views that foreign nationals especially those who are undocumented, are distorting labour market access.

“This practice is promoted by some employers who do not comply with existing labour legislation and continue to undermine existing minimum standards. The Employment and Labour NLMP will introduce maximum quota/s 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 just to name a few,” the department said.

The department said the NLMP will be complemented by small business intervention and enforcement of a list of undesirable sectors where foreign nationals cannot be allocated business visas and amendments to the Small Business Act to limit foreign nationals establishing Small, Medium-sized and Micro Enterprises (SMMEs) and trading in some sectors of the economy.

The Department of Home Affairs is also reviewing the Immigration Act, the Citizenship Act and the Refugees Act to ensure more alignment. The Home Affairs, Border Management Authority is also getting into action to secure porous borders and to allow for the orderly movement of people and other nationals across ports of entry only.

Secondly, the Department of Higher Education and Training has released scarce and critical skills in high demand to provide guidance to all institutions to prioritise education and training interventions in those areas.

The department said 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,” the department said.

Thirdly, South Africa is a signatory to international treaties and conventions governing the rights of migrants.

“All policies and interventions were developed within the ambit of the Constitution of the Republic of South Africa and the Department will ensure the protection of migrant workers and their families in accordance with international standards and guidelines,” the department said.

Lastly, the department said 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 department says the Employment Services Act, Act No 4 of 2014, Sections 8 and 9 are very specific in terms of the roles of the department working with Home Affairs, in managing the employment of foreign nationals.

“The ES Act compliments the Immigration Act 2002, in that it prohibits an employer from employing a foreign national in the territory of the Republic of South Africa prior to such a foreign national producing the applicable and valid work visa issued by the Department of Home Affairs. Section 9 provides for a list of prohibited acts in respect of foreign nationals, the offences and the applicable fines,” the department said.

The Immigration Act 2002, Regulations require or prescribe that the DEL Public Employment Services and Inspection and Enforcement Services branches must issue benchmarking certificates that serve as a positive or negative recommendation to Home Affairs for the following work visa types:

Business Visa: S (15) Regulation 14(4)

General Work Visa (GWV): S (19)(3) Regulation 18 (3)

Corporate Visa (Cor. V)-for group applications: s (21); Regulation 20(1)

The Minister of Employment and Labour Thulas Nxesi said that all applications for the department’s recommendations are processed through online systems and any employer can also approach any of the department’s 126 Labour Centres and more than 435 visiting points across the country.

“I would like to reiterate that, the only people who are well trained and have the legal mandate to enforce compliance with the labour laws are the department’s Inspectors,” the Minister said.

The DEL continues to play a significant role in reducing unemployment, poverty and inequality through a set of policies and programmes developed in consultation with social partners, which are aimed at:

Improved economic efficiency and productivity

Employment creation

Sound labour relations

Eliminating inequality and discrimination in the workplace

Alleviating poverty in employment

“The DEL will always strive for a labour market that is conducive to investment, economic growth, employment creation and decent work,” the department said.

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