Government crackdown on businesses – what employers in South Africa need to know
The Department of Employment and Labour (DEL) has ramped up its inspection raids, which remind employers to audit foreigners’ employment status to avoid being caught in violation of immigration, employment, and criminal laws.
This was outlined by legal experts at Cliffe Dekker Hofmeyr (CDH) Imraan Mahomed, Taryn York and Mapaseka Nketu.
Recently, Minister Nomakhosazana Meth reported nearly 2,900 inspections conducted in under a week across all provinces, with the Western Cape leading at over 800 inspections.
The operations have covered various non-compliance issues, including wage, immigration, and safety labour law standards.
The DEL collected over R10 million from South African employers during a recent compliance inspection operation.
Although inspections are not new, their increase is of note.
Recently, Meth announced that the department is set to employ close to 20,000 labour inspectors to clamp down on non-compliance and illegal labour practices.
“Over the Medium-Term Expenditure Framework (MTEF) period, we plan to significantly expand our inspectorate, increasing the number of inspectors from 2,000 to 20,000. This expansion will enhance our ability to conduct thorough audits and inspections across the country,” Meth said.
The purpose of labour inspectors are to ensure and enforce compliance with South African labour laws.
“Our commitment extends beyond enforcement; it is about fostering social justice and ensuring that every worker’s rights are protected.
“Fair labour practices lead to increased morale, productivity, and ultimately, a more robust economy [and] together, we can build a society where economic prosperity and social equity reinforce each other,” said the minister.
The CDH legal experts advise that, with the department confirming its ongoing compliance inspections focused on violations (particularly of the Immigration Act), employers should review the employment status of foreign workers to prevent potential breaches of immigration, employment, and criminal laws.
“Pursuant to these inspections, approximately 80 people working in restaurants across the country have been arrested for violating the provisions of the Immigration Act by failing to produce the requisite documentation,” said Mahomed, York and Nketu.
These arrests have included restaurant owners, managers, human resource practitioners and foreign national employees.
Section 38 of the Immigration Act obliges employers to ensure that they will not employ:
- An illegal foreigner;
- A foreigner whose status does not authorise them to be employed by such person; or
- A foreigner on terms, conditions or in a capacity different from their status.
“In complying with their obligations, employers are required to make a good faith effort to ensure that no foreigner is illegally employed or to determine the status of any foreigner who is employed,” said the CDH legal experts.
“Where an illegal foreigner is employed, an employer needs to be alive to how to manage the situation to avoid claims in the Commission for Conciliation, Mediation and Arbitration (CCMA),” they added,
With the DEL confirming its ongoing compliance inspections aimed at addressing violations of the Immigration Act, employers are urged to assess the employment status of foreign workers.
This will help them avoid violations of immigration, employment, and criminal laws.
The audits should be comprehensive, including checks on the validity of work visas or permits and an understanding of the specific employment restrictions that apply to each individual.
The CDH legal experts highlighted than an inspection by the DEL or the Department of Home Affairs (DHA) must be conducted in accordance with the prevailing laws, which regulate:
- The right of entry to a workplace;
- The ability to search, inspect, seize documents and arrest people suspected of having committed a criminal offence.
However, it is important to note that labour inspectors need a certificate to confirm their status and the regulations they are investigating.
The Minister provides each labour inspector with a signed certificate stating that the person is a labour inspector, stating under which legislation that inspector is authorised to monitor and enforce the legislation, and stating which of the functions of a labour inspector that person may perform.
Labour inspectors can inform employees and employers of their rights, inspect required records under the Basic Conditions of Employment Act (BCEA), investigate employee complaints, and ensure compliance by securing undertakings from employers or issuing compliance orders.
The labour inspector is also authorised to enter your premises without warrant or prior notice at any reasonable time to monitor and enforce compliance with the act.
“Over the last decade, employers have regrettably become accustomed to political parties such as the Economic Freedom Fighters and organisations like Operation Dudula (and others) insisting on conducting their own inspections, which often resulted in conflict as these were unlawful,” said Mahomed, York and Nketu.
“However, inspections by the DEL and the DHA, where conducted by the law, are to be welcomed by law-abiding employers to ensure compliance with the prevailing immigration, employment and occupational health and safety laws.
The powers of legal labour inspectors to question and inspect workplaces are extensive.
Employers should expect inspectors to enforce compliance with employment laws, which may include:
- Disclosure of Information: Individuals questioned by inspectors must respond truthfully and to the best of their ability.
- Inspection of Records: Inspectors can request access to any relevant documents or records related to employment law, as well as inspect machinery or equipment on-site.
- Copying Documents: Inspectors may require copies of records and can remove documents for this purpose, providing a receipt for any items taken.
- Production of Documents: If specific records are missing, inspectors can demand their production.
In a discussion regarding this crackdown, CDH expert Leila Moosa said that it is crucial for employers to understand that inspectors can arrive unannounced and may disrupt operations, potentially involving multiple employees in the investigation.
All individuals, not just employees, are legally obligated to cooperate with lawful requests from labour inspectors.
“It is best that employers be prepared,” concluded the experts, and conducted internal audits.
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