2022-03-02

Limits on foreign nationals in employment and in some economic sectors.

Some sectors of the economy will soon be reserved exclusively for South Africans, and the employment of foreign nationals limited.

The National Labour Migration Policy (NLMP) was released for public comment on Monday, introducing employment quotas on foreign workers, as well as ban foreigners from starting small businesses in some sectors.

Employment and Labour Minister Nxesi introduced the NLMP and the Employment Services Amendment Bill for public comment.

It is time to audit the citizenship of your employees and determine whether or not they have scarce or critical skills which would justify their continued employment.

Quotas.
The Minister will set quotas on the total number of documented foreign nationals with work visas that can be employed in agriculture, hospitality and tourism, construction, along with other sectors. The quotas will differ per occupation, sector, or region.

The quotas would apply to formal employees, anyone paid for any work as well as “platform workers”, such as Uber drivers.

Limit on small businesses.
Amendments to the Small Business Act will limit foreign nationals from establishing small and medium-sized enterprises and trading in some sectors of the economy. There will be sectors where foreign nationals cannot be allocated business visas.

Foreign nationals.
Foreign nationals all people who aren’t citizens, permanent residents, or refugees. Currently foreign-born persons represent 4% of the population and 7% of the labour force.

Banning employment of foreign nationals.
Nxesi said that “In terms of the law, we can’t ban the employment of the foreign nationals. It will not allow us. The Constitution of this country will not allow us to do that. We can limit and control it. That is what we are trying to do.”

Employers must satisfy themselves that there is no availability of the requisite skills before opting to hire a documented foreign national.  Government will impose obligations on both the employer and the foreign nationals to transfer skills to locals, and permits will be limited to specific durations. Obligations of an employer engaging foreign workers include: 
• only employing foreign nationals entitled to work in terms of the Immigration Act, the Refugees Act or any other provision;
• ascertain the foreign national is entitled to work in the Republic in the relevant position;
• satisfy themselves that there are no South Africans with the required skills to fill the vacancy;
• prepare a skills transfer plan, where appropriate;
• employ foreign nationals on the same terms as local workers.

Scarce and critical skills
The Department of Home Affairs recently 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. This 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.

Timeline
The legislation is expected to be passed by July 2022.