New laws for worker quotas to South Africa

South Africa has approved the National Labour Migration Policy 2025 White Paper for implementation, which will see worker quotas imposed on various sectors in the economy.

The white paper has been under consideration for several years, looking to make significant changes and bring tighter controls to the movement and hiring of foreign workers in the country.

One of the fundamental meansures the policy brings into play is the use of worker quotas for foreign nationals.

This will impose strict limitations on the number of foreign workers who may be employed in major economic sectors such as agriculture, hospitality, tourism and construction.

The narrative of foreign workers taking the jobs of locals has been pushed and spread across these sectors in South Africa, often resulting in cases of social unrest and violence.

This is particularly pronounced in the context of South Africa’s persistently high unemployment rate, where jobs are extremely scarce.

In response to these issues, the Department of Employment and Labour developed the white paper to set a hard limit on the number of foreign workers who can be employed, and in some cases restricting the allocation of business visas for foreign nationals.

The policy also intends to limit foreign nationals from establishing small, medium and micro enterprises and trading in certain sectors of the economy.

The white paper will be given effect by the Employment Services Amendment Bill, which willmakle changes to the Employment Services Amendment Act, 2021.

These changes will empower the minister of labour to set this quotas and restrictions, and to also exempt employers from adehering to them.

Employers may only exceed quotas in cases where critical skills are required or where an exemption is granted by the minister.

New hoops for businesses to jump through

According to legal experts at Cliffe Dekker Hofmeyr (CDH), once the new laws are implemented, employers in South Africa will have to jump through a few hoops to ensure they remain within the confines of the policy.

If a business wants to employ a foreign national, they will have to firstly determine whether such a worker is entitled to work in Soith Africa and to perform the work according to their visa conditions.

They will also have to satisfy the requirement that no other person in South Africa, other than the foreign national, has the requisite skills to fill the vacancy.

The bill also imposes the condition that employers prepare a skills transfer plan for any position filled by the foreign nationa and provide foreign nationals with terms and conditions of employment which are no less favourable to those provided to South African citizens or permanent residents.

CDH warned that non-compliance may result in enforcement action, including fines of up to R100,000 and other penalties.

Further complicating the landscape for businesses is that the proposed amendments also need to be considered with the Employment Equity Amendment Act.

This means that businesses and employers will also have to take the new ‘transformation targets’ into account when trying to fill positions.

The bill still needs to pass through Parliament for consideration and enactment.

However, while the laws have not been implemented as yet, CDH warned that employers will have to start considering how to navigate the coming changes.

According to the South African Federation of Trade Unions’s General-Secretary, Zwelinzima Vavi, the labour sector is broadly welcoming of the laws, but noted it does not change much.

He said that the key issue is the enforceability of the laws.

Vavi noted that strict labour laws have been in place since 2002, but this “hasn’t stopped the farm bosses from hiring undocumented labour in their thousands”.

This same trend has been seen at security firms and food retailers and many other sectors, he said.

“So while we embrace the quota system, the question is whether there will be enforcement to stop employers from exploiting undocumented workers from elsewhere”.

CHD noted that the new laws are part of a wider initiative involving other departments, like the Department of Home Affairs, which has been clamping down on illegal foreign workers.

Home Affairs recently launched ‘Operation New Broom’, a technology-driven initiative aimed at combating illegal immigration which uses advanced biometric technology to verify the immigration status of individuals in South Africs.

In its first phase, Operation New Broom has already resulted in the arrest of 25 suspects who had illegally occupied land in District 6, Cape Town.