You will not be able to employ a foreign worker unless they have a work visa, a temporary asylum document, or permanent asylum which can take many years to obtain.

The Gauteng government is going to use employment quotas (limits) on businesses as to the number of foreign workers they can employ to ensure that they hire local workers.

The Bill is very strict about the obligations of the employer to:

  1. Establish whether the foreign national is entitled to work in South Africa.
  2. Ensure that there are no other persons (citizens, permanent residents, or refugees) in South Africa other than foreign nationals with the required skills to fill the vacancy.
  3. Prepare a skills transfer plan for positions in which foreign nationals are employed. Certain sectors or categories of workers may be excluded from the requirement to prepare a skills transfer plan.
  4. Employ foreign nationals on terms and conditions of employment that are not inferior to those that would be provided to a citizen, permanent resident, or refugee.
  5. Keep documented evidence that proves the foreign nationals are lawfully entitled to be employed in the Republic.

The Bill empowers the Minister Of Employment and Labour to make regulations concerning:

  1. The measures that employers must take to ensure that there are no other persons in South Africa with suitable skills to fill a vacancy before recruiting a foreign national.
  2. Requirements for employers who make use of public employment services or private employment agencies when recruiting suitable employees who are citizens, permanent residents, or refugees.
  3. Requirements for the preparation of a skills transfer plan by employers in respect of a position in which a foreign national is employed.
  4. Requirements for applying for an exemption to the Minister.
  5. The record that employers are required to keep in respect of foreign nationals in their employ.

The Minister is empowered by the Bill to specify maximum quotas for the employment of foreign nationals by employers in specific sectors.

The Minister may limit the number of foreign nationals that an employer can employ should a quota be issued for the employer’s sector or specific occupational category in a sector, or even on a national or regional basis.

The Bill empowers the Minister to exempt an employer’s quota when employing a foreign national in a position that requires critical skills.

The Bill prohibits employers from requiring or permitting a foreign national to perform any work that is not authorised by his or her visa or work permit.

Employers that contravene the provisions of the Bill may be SUBJECT TO FINES OF R100,000 OR IMPRISONMENT as well as further sanctions as permitted in terms of applicable legislation.

(Extracts from an article written by PH Attorneys)

What To Do If You Have To Dismiss A Foreign National Who Doesn’t Have A Valid Work Permit Or Temporary Or Permanent Asylum To Avoid Being Charged And Fined?

If you can’t assist the employee in obtaining a work permit or temporary asylum then unfortunately, you will need to dismiss  the employee through retrenchment or incapacity:

  1. Please follow the correct retrenchment procedure. Ask me for more information, or
  2. You need to hold an incapacity hearing because the employee is incapable of obtaining a work permit or asylum.

In both cases above, if you don’t follow procedure the undocumented foreign national can lay charges against you at the CCMA. They have the same rights as any employee in South Africa.

ELSABÉ MANNING: 082 513 6312