“In my mind we are facing three main disruptors in the labour market that are going to result in the displacement of I think between one and 1.5 million people in the next few months and years.”

These were the words of Joint Chief Executive Officer of Global Business Solutions John Botha at the Temporary Employment Services Division webinar discussing the National Labour Migration Policy.

Botha identified the major disruptors with a particular focus on the intricacies surrounding the pertinent National Labour Migration Policy(NLMP).

The disruptors outlined by Botha were the following:

• The National Labour Migration Policy
• Employment Equity ministerial targets and
• Platform workers

The above mentioned were categorised as a “wonderful opportunity” for employers to build their business in alignment with South African labour law.

In the South African political landscape, foreign nationals are an easy target. Operation Dudula and the national stay away hosted by the Economic Freedom Front on 20 March 2023 illustrated the politicisation of job (in)security and its effects on South Africans. The NLMP is “an attempt by the government to create direction on how to manage the complexities of our economy,” stated Natalie Singer, Executive Consultant and Human Capital Specialist at Global Business Solutions .

Skilled labour shortages in the South African economy have ensured the war on talent continues, but what does that mean for employers and how do they remain compliant with incoming legislation? The NLMP serves as a regulatory measure which extends South Africa’s obligation to uphold standards as a member of the International Labour Organisation(ILO).

As the NLMP is introduced, it affects other facets of national legislation such as the Employment Services Act (of 2014) which must be amended to take it into account. The amendment to the bill is over one year behind schedule, however with the looming election period, it is presumed that it will be prioritised as it serves as a point of political contention.

The priorities of the NLMP are as follows:

• Attracting and retaining skills (in)to the country to meet the economy’s long and short-term goals
• Imposing quotas to limit the number of foreigners
• Prioritising certain sectors in urgent need of critical skills
• Improving conditions for all migrant workers
• Improving the conditions of social protection of migrant workers in South Africa and upon return to their country of origin
• Creating legal labour migration pathways through strong bi- and multilateral partnerships with SADC Member States and beyond

2022 transformation numbers reported that 3-3.5% of the South African labour force consists of foreign nationals. This is with the exception of skilled labour or Artisans who were represented by a percentage of 1.7% foreign nationals.

The Zimbabwean Exemption Permit’s (ZEP) imminent expiration date is something which employers across South African industries must pay close attention to. Meant to expire in April of 2021 the ZEP was extended to 30 June 2023. This grace period is mandated by the Department of Home Affairs as a concession for Zimbabwean foreign nationals to re-apply for their relevant South African visas or return to Zimbabwe.

Although it is illegal for foreign nationals to hold occupations without the relevant legal requirements being met, liability falls on employers to enforce the law within correct due diligence processes.

Employers have very specific obligations, as per the Immigration Act and associated regulations, including and ensuring that:

• Foreign national employees hold a valid passport/ID and visa
• Employment is consistent with the conditions of the employee’s visa
• Home Affairs is notified when a foreign national leaves their employment
• All documentation is retained for at least two (3) years after the foreign national has exited

It is also mandated by the government that employers prioritise hiring South Africans before foreign nationals. The Critical Skills List serves as an indication of skills which are lacking nationally where the government recognises the need to hire foreign nationals, more than in other circumstances.

Some of these roles which speak to TESD members in the technical and engineering sectors are the following:

• Architect
• Civil Engineer
• Geologist
• Industrial Engineer
• Mechanical Engineer
• Metallurgist
• Quantity Surveyor

The Critical Skills List has other concessions which form part and parcel of the list such as tertiary qualifications being in line with the South African Qualifications Authority.

All South African employers are encouraged to audit their employees regularly to remain compliant with South African Labour Law. The fast-approaching expiry of the ZEP will have legal consequences for employers. Businesses must also take note of the Lesotho Exemption Permit expiry in June 2024.