Employment Services Bill 38 of 2012
01 March 2014
The Bill aims to repeal all the employment services provisions contained in the Skills Development Act (1998) as well as those provisions establishing Productivity South Africa, and to provide for a range of measures to promote employment and to also regulate the employment of foreigners. According to the Memorandum of Objects of the Bill (the Memorandum), the Bill seeks to contribute to the government’s objectives of ‘‘More jobs, decent work and sustainable livelihoods’’.
One of the purposes of the Bill is to "facilitate the employment of foreign nationals in the South African economy where their contribution is needed in a manner that gives effect to the right to fair labour practices contemplated in section 23 of the Constitution, that does not impact adversely on existing labour standards or the rights and expectations of South African workers, and that promotes the training of South African citizens and permanent residents".
The Bill essentially provides for the following:
• Comprehensive and integrated free public employment services.
• Registration, monitoring and regulation of private employment agencies.
• Establishment of schemes to promote the employment of young job seekers and other vulnerable persons, including the promotion of protected work for persons with disabilities.
• The regulation of the employment of foreign nationals.
• The establishment of protected employment enterprises.
• Establish schemes to minimise the retrenchment of employees who are employed by employers in protected employment enterprises that are in economic distress.
• Establishment of the Employment Services Board.
• The establishment of the Productivity South Africa Board.
In terms of Clause 8 of the Bill (which regulates the employment of foreign nationals) an employer may not employ a foreign national within the territory of the Republic of South Africa prior to such foreign national producing an applicable and valid work permit, issued in terms of the Immigration Act. The legislature provides a shield for employees who are employed without the requisite employment permit by providing that such employees are entitled to enforce any claim that they may have in terms of any statute or contract of employment against their employer or any person who is liable in terms of the law.
Clause 8(2) of the Bill provides that the Minister may, after consulting the Board, make regulations to facilitate the employment of foreign nationals. Such regulations may include measures that require employers to satisfy themselves that there are no other persons in the Republic with suitable skills to fill a vacancy, before recruiting a foreign national; the employers may make use of public employment services or private employment agencies to assist the employers to recruit a suitable employee who is a South African citizen or permanent resident; and preparation of a skills transfer plan by employers in respect of any position in which a foreign national is employed. The Memorandum provides that the regulations by the Minister will be for the purpose of protecting the conditions of employment of South African citizens and permanent residents.
This implies that foreign nationals will only become eligible for employment as a "last resort", that is when there is no citizen with the requisite skills, expertise or experience to fill that particular vacancy. This will see South Africans being first preference when candidates are being considered to fill vacancies. The result hereof will be an increase in the number of South Africans flooding the labour market where employment opportunities become available.
Where the employment of a foreign national is being considered, the employer is obliged to notify the Department of Labour (the Department) of any vacancy or new position in its institution within 14 working days subsequent to the position becoming vacant or being created. The employer is further obliged to notify the Director General of the filling of any vacancy within 14 days. This will assist the Department in monitoring the institutions and to ensure compliance by employers as they will have to account on who fills such positions. The natural consequence will be that employers would rather employ citizens or permanent residents in order to avoid the obligation to explain decisions to appoint foreign nationals.
Clause 9 provides that an employer may not require or permit a foreign national to perform any work that such foreign national is not authorised to perform in terms of his or her work permit or to engage in work contrary to the terms of their work permit. According to clause 49(2) of the Bill, the Labour Court may, on application by the Director-General, impose a fine not exceeding R50 000 on an employer that contravenes any of the Schedule 3 provisions. This amount is subject to amendment by the Minister by notice in the Gazette.