South Africa: New Bill to Introduce Quotas for Foreign Workers

• Employment of foreign nationals. Under the bill, foreign nationals would only be permitted to work in South Africa if they have the appropriate work visa, have an asylum seeker permit endorsed with the right to work or if they are permitted to work according to an international agreement. This portion of the bill is aimed at restricting employment of foreign nationals to those holding recognized types of work authorizations. 
• Quotas for employment of foreign nationals. The Minister responsible for labour and employment will be empowered to set up quotas for the employment of foreign nationals in one or more sectors, occupational categories, nationally or even regionally in a sector. In determining quotas, the Minister will consider the availability of skills among South African citizens, permanent residents and refugees. 
  • Determination of quotas. Before implementing the quotas applicable for a sector, region or position, the Minister of Labour and Employment may issue a notice to employers subject to quotas. Employers will have 30 days to comment on the impact of the quota on their operations.  
• Skill transfer plan. Employers employing foreign nationals must ensure that they prepare a skills transfer plan for all foreign nationals. Currently, a skills transfer plan applies only to foreign nationals entering the country under Intra-Company Transfer Visas. Through the proposed bill, this would apply to all foreign nationals seeking work authorization. 
• Labor market test. The bill outlines that employers must ensure that there are no locals qualified to take over the position by conducting a labor market test, as the current immigration law requires for a general work visa option. 
• Documentation. The bill emphasizes that employers must maintain records of lawful employment of foreign nationals for workplace audits, as is already required by the current immigration law. Employers who fail to comply with documentation obligations may face fines. 
• Public consultation. The public is now invited to participate in the consultation process, which will end on May 31, 2022. Fragomen can assist employers and individuals in submitting input. 

Once the bill has become law, foreign nationals may face an additional administrative hurdle to the work authorization process since they may be subject to a quota within their sector, occupation, or based on the region in which they work. 

Employers will have to comply with quotas in order to ensure that locals have access to job opportunities once the bill becomes law. Those failing to comply may face fines. 

The draft National Labour Migration Policy and Employment Services Bill is intended to ensure that locals have access to economic opportunities, following high unemployment rates during COVID-19 pandemic.  Foreign worker quotas are expected to be imposed in sectors, occupations and regions where the employment of more foreign nationals is found to be concentrated.  

Through the adoption of quotas, South Africa will align with other African countries that use quotas, such as Mauritania and the Democratic Republic of Congo. 

The input obtained during the consultation process will be included in a final bill to be debated and passed by the parliament and then signed into law by the head of state. The process to develop regulations for implementing the law will be followed by its implementation date, which will at a date to be announced later.