This blog was co-authored by Thando Ndita, candidate attorney
Last month the Minister of Employment and Labour published proposed amendments to the Employment Services Act, 2014, the purpose of which is to address high unemployment and the “high representation of foreign nationals” in the unskilled sector. Foreign nationals include all persons who are not South African citizens, permanent residents or recognised refugees. A recognised refugee is an asylum seeker who has been recognised as a refugee.
These amendments seek to introduce a prohibition on the employment of foreign nationals, unless an employer can:
“satisfy themselves that there are no persons in the Republic, other than foreign nationals, with the requisite skills to fill the vacancy, before recruiting a foreign national to occupy such vacancy”
This effectively constitutes a legal bar to the employment of all foreign nationals in all work where a high level of specialised skills is not required.
In addition, the Bill intends to introduce maximum quotas for the employment of foreign nationals in certain sectors.
A concerning upshot of the proposed amendments is their effect on the rights of asylum seekers to work in the country. Whilst the prohibition does not purport to limit the rights of recognised refugees to be employed, it does act as a bar to asylum seekers being employed in lower skilled jobs.
Asylum seekers are individuals who have entered the country to seek refuge from persecution in their home country but have not yet been granted the legal status of “refugee” in terms of the Refugee Act, 1998. They are nonetheless lawfully entitled to remain in the country until their applications are determined. The systemic delays in processing applications for asylum (which can take more than fifteen years in some cases) have been repeatedly commented on adversely by our courts.
It is difficult to imagine how asylum seekers will support themselves and their families during the lengthy period in the country prior to being recognised as a refugee.
The Constitutional Court has recognised that the right to work and the right provide for oneself and one’s family is an intrinsic part of an individual’s right to dignity and life. The 1951 Convention Relating to the Status of Refugees, which is binding on South Africa, requires that certain categories of refugees (regardless of whether they recognised as such or termed asylum seekers in local law) are exempt from any laws restricting employment with the view to protecting the local labour market.
There is very little, if any, chance of the proposed amendments in their current form passing constitutional muster when challenged through the courts.
The Employment Services Bill, 2021 was gazetted on 28 February 2022 and provides 90 days for public comment.