The employment of foreign nationals has long been regulated but to a large extent been pushed to the side and employers either do not know regulations or they just don’t care.
I have looked into
The Immigration Act provides for the admission of foreigners to, their residence in and departure from South Africa and matters connected therewith including the ability of foreigners to work in South Africa.
The Employment Services Act 4 of 2014 (“ESA”), which came into effect in August 2015, further regulates the employment of foreigners. ESA has been introduced to promote employment, encourage productivity, decrease levels of unemployment and provide training for unskilled workers. One of the specific aims of ESA is to facilitate the employment of foreign nationals in a manner that is consistent with the objects of the Immigration Act. Importantly, the ESA accords jurisdiction to the Labour Court to deal with issues relating to the employment of foreigners and also confirms the sanctions for non-compliance as set out in the Immigration Act.
In addition the Labour Relations Act 66 of 1995, as amended (“the LRA”) is applicable regardless of the legal status of the employee. The LRA governs disputes relating to unfair dismissal and unfair practices in employment and regulates the resolution of these disputes.
As a point of departure, several statutes regulate the employment of foreign nationals in South Africa. The Immigration Act,13 of 2002 (hereafter referred to as “The Immigration Act”), as amended, states in Section 38 thereof, that it is unlawful for any employer to employ any foreigner in South Africa without the requisite status. Such status must authorize him to be in the Republic and must be consistent with the terms of his employment. Furthermore, the Employment Services Act, 4 of 2014, as amended defines foreign nationals as follows:
‘‘foreign national’’ means an individual who is not a South African citizen or does not have a permanent residence permit issued in terms of the Immigration Act; “
Section 8(1) further states that:
“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.“
Section 38 of the Immigration Act states that:
“(1) No person shall employ-
(a) an illegal foreigner;
(b) a foreigner whose status does not authorize him or her to be employed by such 20
person; or
(c) a foreigner on terms, conditions or in a capacity different from those contemplated in such foreigner’s status.
(2)An employer shall make a good faith effort to ascertain that no illegal foreigner is employed by him or her or to ascertain the status or citizenship of those whom he or she 25 employs.
(3) If it is proven, other than by means of the presumption referred to in subsection (5).that a person was employed in violation of subsection (1), it shall be presumed that the employer knew at the time of the employment that such person was among those referred to in subsection (1), unless such employer proves that he or she-
(a) employed such person in good faith; and
(b) complied with subsection (2), provided that a stricter compliance shall be required of any employer who employs more than five employees or has been found guilty of a prior offence under this Act related to this section.
(4) An employer employing a foreigner shall –
(a) for two years after the termination of such foreigner’s employment, keep the prescribed records relating thereto: and
(b) report to the Department-
(i) the termination of such foreigner’s employment; and
(ii) any breach on the side of the foreigner of his or her status.
(5) Ifan illegal foreigner is found on any premises where a business is conducted. It shall be presumed that such foreigner was employed by the person who has control over such premises. unless prima facie evidence to the contrary is adduced.”
Section 38(2) of the Immigration Act places a clear duty on employers to ascertain the status of any employee or prospective employee. Furthermore, if an employer is found to have employed a person in violation of Section 38(1), it shall be presumed that such employer did so knowingly contravening the Act. Thus, the employer bears the onus to prove that an employee was lawfully employed.
An employer failing to comply with Section 38 of the Immigration Act may face a fine or prison sentence not exceeding one year in terms of Section 49 of said Act. An arguably greater dilemma for the employer is that the employee is protected insofar as all provisions of the Labour Relations Act, 65 of 1995, as amended of and other law will still apply. This means that if an employer is found to be illegally employing a foreign national, due process must still be followed to terminate the employment.
The law does not declare that a contract of employment concluded without the required permit is void nor does it provide that a foreigner who accepts work without a valid permit is guilty of an offence. What is prohibited is the act of “employing” a foreign national in violation of the law. All of the liability is therefore attributed to the employer and the law does not penalise the action of the foreign person who accepts work or performs work without valid authorisation. It is the illegal employment of a foreigner that is prohibited.
Therefore a foreign national whose work permit expires whilst employed, or who is employed without a relevant work permit is still an ‘employee’ for the purposes of the LRA. This means that the employee would have recourse to compensation in the case of an unfair dismissal, through the CCMA. Such employees would not be entitled to reinstatement as such an order would be in contravention of the Immigration Act.
The employment of foreigners is designed to be a short-term measure to bridge the skills shortage within an employer’s business and to facilitate the transfer of skills. Employers should, therefore, ensure that a skills transfer plan be prepared to ensure that the relevant skills are transferred to a South African citizen and that the necessary time and resources are invested in transferring and retaining the skills in South Africa.
Employment of foreign nationals
8. (1) 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.
(2) The Minister may, after consulting the Board, make regulations to facilitate the
employment of foreign nationals, which regulations may include the following
measures:
(a) The employers must satisfy themselves that there are no other persons in the
Republic with suitable skills to fill a vacancy, before recruiting a foreign
national;
(b) 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
(c) preparation of a skills transfer plan by employers in respect of any position in
which a foreign national is employed.
(3) A regulation made in terms of this section may—
(a) include any other requirement necessary to implement the provisions of this
section which are consistent with the Immigration Act; and
(b) differentiate between different categories of visas issued in terms of the
Immigration Act and different categories of work.
(4) An employee who is employed without a valid work permit is entitled to enforce
any claim that the employee may have in terms of any statute or employment
relationship against his or her employer or any person who is liable in terms of the law.
According to Stats SA, the official unemployment rate increased by 1.0 percentage point to 30.1% in the first quarter of 2020 compared to the fourth quarter of 2019.
National targets will be set by the minister in various sectors as per the Employment Equity Amendment Bill 2020. These targets will also regulate the employment of foreign nationals in the various business sectors.