PROPOSED EMPLOYMENT LAW DEVELOPMENTS PART I
THE DRAFT NATIONAL LABOUR MIGRATION POLICY AND THE EMPLOYMENT SERVICES AMENDMENT BILL
The Department of Employment and Labour (the Department) has called for comments with respect to the proposed Draft National Labour Migration Policy and the Employment Services Amendment Bill (the Draft Bill).
Comments must be submitted by Saturday 28, May 2022 by way of email to: NLMP@labour.gov.za.
Key aspects of the Draft Bill:
- The Minister is empowered to set maximum quotas for the employment of foreign nationals as employees or workers in any sector, occupation, region or nationally.
- The Minister is empowered to make regulations which govern the employment of foreign nationals, such as:
- to certify that there are no suitable persons for the role within South Africa;
- to fulfil to utilise public employment services or private employment agencies to recruit suitable candidates;
- for the drawing up of a skills transfer plan;
- as well as procedure to apply for an exemption to the above from the Minister; and
- regarding the records that are to be kept on foreign nationals.
The Draft Bill further introduces a new section to include work or services provided to “digital labour platforms”. The following definitions within the context of the Draft Bill apply:
- Digital labour platform: “an electronic entity that enables the provision of work or services to any other person in the republic”.
- Worker: “any person who works for another and who receives, or is entitled to receive, any payment for that work, whether in money or in-kind”.
- Private employment agency: a company that provides employment services to any other company that is registered and licensed to operate as a private employment agency. There is no longer the requirement of “for gain”.
To be considered an employer, the digital labour platform must:
- Determine the payment and/or terms and conditions or the work/services provided, and
- Remunerate the worker.
These proposed amendments operate in conjunction with the proposed Employment Services Amendment Bill to provide a policy and legal framework to regulate the extent to which employers may employ the labour of foreign nationals in their businesses while simultaneously protecting their rights as foreigners.