EXPLAINER | How new bill seeks to legally regulate hiring of foreigners

South Africa is proposing major changes to the way employers hire foreign nationals , with new rules on work authorisation, possible employment quotas, skills transfer and tougher penalties for employers who break the rules .

The proposed amendments to the Employment Services Act would also strengthen the regulation of private employment agencies, expand labour-migration oversight and give labour inspectors greater enforcement powers.

But what exactly is changing — and why is government proposing these amendments?

The bill would create a more detailed framework for the employment of foreigners. Employers would be required to ensure foreign workers are legally authorised to work, verify their documentation and keep records of their work authorisation. They would also have to consider whether suitable South African candidates are available and, generally, prepare skills-transfer plans. The proposed changes therefore place greater responsibility on employers to show that the employment of foreigners complies with the law.

The bill would allow the employment and labour minister to set quotas for employment of foreigners. These could apply to particular sectors, occupations, regions, or nationally.

However, proposed quotas would have to be published in the Government Gazette for public comment and would be informed by advice from the Employment Services Board. Small employers would be excluded from the quota system by default, according to the proposed amendments. Employers would also be able to apply for exemptions from quotas.

Employment and labour minister Makhosazana Meth says the bill seeks to legally regulate the employment of foreigners against changing economic and demographic conditions.

The proposed framework is also aimed at strengthening the protection of local skills while ensuring labour migration is better regulated.

The bill would give the minister and Employment Services Board additional responsibilities regarding the recruitment of foreigners, labour-migration data, international agreements and the welfare of migrant workers. It would also provide for the recruitment and reintegration of South Africans living abroad and protection for South Africans temporarily working in other countries.

However, the proposed changes do not mean a foreign national employed contrary to the new rules would lose all labour protections. The bill provides that a foreigner could still enforce rights arising from labour laws, collective agreements or their employment contract. Labour inspectors and bargaining-council agents could also enforce certain claims on their behalf.

The proposed amendments also introduce or clarify definitions for terms including “worker”, “employer”, “asylum seeker”, “refugee”, “critical skills” and “permanent resident”.

Refugees and asylum seekers would be treated differently from other foreigners for employment purposes.

The bill proposes stronger enforcement powers and higher penalties. Labour inspectors would have express powers to monitor and enforce compliance with the act.