New pending regulation regarding employing of foreign nationals – FEDHASA analyses and provides a broad outline

Minister of Employment and Labour, TW Nxesi, published a draft National Labour Migration Policy and a draft Employment Services Amendment Bill for public comment. 

In a media release, the Minister of Employment and Labour stated that the National Labour Migration Policy goes hand in hand with the proposed Employment Services Amendment Bill by providing a policy framework and the legal basis to regulate the extent to which employers can employ foreign nationals in their establishments, while protecting the rights of migrants.

The draft National Labour Migration Policy and the Draft Employment Services Amendment Bill once finalised and published will no doubt be substantiated by one or more regulation publications expanding on various aspects.

Below, FEDHASA provides a broad outline and basic summary of the contents of the Draft National Labour Migration Policy and the Draft Employment Services Amendment Bill published for comment by the Department of Employment and Labour.

Draft National Labour Migration Policy

The policy document, around 115 pages long, provides a significant amount of background and guidance in support of the final conclusions and specific action proposed in both the policy and the amendment bill.

The Minister broadly summarised the contents of the policy document as follows –

National Labour Migration Policy seeks to achieve a balance between;

  • the SA population’s expectations regarding accessibility to work given worsening unemployment
  • the perception that undocumented foreigners are distorting labour market access
  • South Africa’s labour market needs for critical skills not locally available
  • The protection of migrant workers and their families, in accordance with international standards and guidelines
  • Regional integration and cooperation imperatives.


Although it is recommended that interested parties (more especially those wishing to make comment) should read through the entire document, the following sections will be of definite interest – 

Section 5.3 Key Area of Intervention 3: Labour migration to South Africa. Pages 81 to 97

Section 5.4 Key Area of Intervention 4: Labour migration from South Africa Pages 98 to 101

Draft Employment Services Act and Amendment Bill

It is recommended that interested parties (more especially those wishing to make comment) should read through the entire Act and the Amendment Bill. 

The Act itself is around 38 pages and provides for matters (amongst others) such as public employment services; the promotion employment of young work seekers; schemes to assist employees in distressed companies to retain employment; the facilitation and  employment of foreign nationals in terms of applicable legislation and the registration and regulation of private employment agencies.

The Draft Amendment Bill sets out (amongst others) to cover private employment agencies not operating for gain; to further regulate the employment of foreign nationals; to expand the scope of the Act to cover employees and workers;  to provide for the improved enforcement of the Act and other laws regulating work by foreign nationals.

The Amendment Bill aims to limit the extent to which employers can employ foreign nationals in possession of a valid work visa, and codifies the obligations of an employer engaging foreign workers to, amongst others:

  • only employ foreign nationals entitled to work in terms of the Immigration Act, the Refugees Act or any other provision
  • ascertain that the foreign national is entitled to work in the Republic in the relevant position
  • satisfy themselves that there are no South Africans with the requisite skills to fill the vacancy
  • prepare a skills transfer plan, where appropriate;
  • employ foreign nationals on the same terms as local workers
  • retain copies of relevant documentation.

In addition, the proposed Amendment Bill lays out a framework that will enable the Minister to set quotas for the employment of foreign nationals.

A quota may apply in respect of a sector of the economy, an occupational category or a geographical area. The Minister will establish a quota in a sector after consultation with the Employment Services Board and after considering public comments. The policy together with proposed legislation (likely in the form of Regulations attached to the Employment Services Act) , will introduce quotas providing for the total number of documented foreign nationals with work visas that can be employed in major economic sectors such as agriculture, hospitality and tourism, construction etc.

The policy will also be complemented (likely in the form of Regulations attached to the Policy or Amendment Bill) by small business intervention and enforcement of a list of sectors where foreign nationals cannot be allocated business visas. It also involves proposed amendments to the Small Business Act to limit foreign nationals establishing SMMEs and trading in some sectors of the economy.

Once the department has received public input on the Draft National Labour Migration Policy & Draft Employment Services Amendment Bill and has made necessary changes, the two documents will be forwarded to Cabinet for consideration before being tabled in Parliament.

Anyone wishing to comment should do so with 90 days of the publication in writing and addressed to –
(a) Email comments to NLMP@labour.gov.za

(b) Enquiries to: Esther.Tloane@.labour.gov.zaorMantombi@labour.gov.za

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