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At Van Deventer & Van Deventer Incorporated, our Cape Town attorneys assist clients across the Western Cape with employer liability and undocumented worker compliance. Whether you are based in the City Bowl, the Atlantic Seaboard, or the Southern Suburbs, our legal team is here to help.
Recent headlines about employers facing fines of up to R100,000 for employing undocumented foreign nationals have caused widespread panic. Social media has been flooded with warnings and many homeowners and small business owners are now wondering whether they could be fined simply because their domestic worker, gardener, nanny or driver does not have the correct documentation.
Before you start worrying, it is important to understand what these proposed changes actually mean, where they come from, and whether they are even law yet. This article unpacks and debunks rumours regarding the proposed Employment Services Amendment Bill, explains what a Bill is, why Government is proposing these changes, and how they may affect both businesses and ordinary South Africans.
What Is a Bill?
A Bill is a draft law that has been introduced into Parliament for consideration. Before it becomes the law, it must pass through several stages, including public participation, parliamentary debates and approval by the National Assembly and National Council of Provinces. Once approved, it must be signed by the President before it becomes an Act of Parliament.
The Employment Services Amendment Bill is currently still a proposed amendment to the Employment Services Act. It has not yet become law and is therefore not enforceable. So, for now, you can take a breath.
Why Has Government Proposed These Changes?
One of Government's biggest concerns is the growing number of undocumented foreign nationals living and working in South Africa. Government planning and budgeting are based on the census. These figures determine how resources are allocated to schools, hospitals, policing, housing and other essential public services.
When people are living and working in the country without being officially counted, it becomes increasingly difficult for Government to accurately plan and budget for the demand on these services. This places pressure on already strained public resources and infrastructure.
The proposed amendments are intended to ensure that foreign nationals who work in South Africa do so legally, are properly documented and are able to contribute to the country's economy. At the same time, Government hopes the amendments will help combat foreign national workers from being exploited, will promote compliance with our labour laws, encourage payment of minimum wage, and create opportunities for South African citizens and legally documented foreign nationals to address our unemployment crisis.
What Are the Main Changes Being Proposed?
Under the Bill, foreign nationals who wish to work in South Africa would need to be legally entitled to do so. This may include holding a valid work visa, having recognised refugee status, or be an asylum seeker.
Employers would be required to take reasonable steps to verify that a foreign national is legally entitled to work in South Africa. They would also be expected to keep copies of relevant permits and visas and ensure that the employee performs only the work authorised by those work permits or visas.
The R100,000 Fine Everyone Is Talking About
If an employer is found to have contravened the provisions of the amended Act, the Labour Court will be entitled to impose fines.
For a first contravention, the maximum fine could be R100,000. A second contravention within three years could gain you a fine of up to R200,000. Repeated contraventions could result in penalties of up to R1 million or 10% of the employer's annual turnover, whichever amount is greater.
Could domestic workers be affected?
Yes.
One of the most important aspects of the Bill is that it does not only apply to large companies and corporations. The definition of an ‘employer’ in the Act means any person who remunerates, or is liable to remunerate, an employee or a worker.
This means that households employing domestic workers, gardeners, nannies, caregivers or drivers could potentially fall within the scope of the bill.
What About Domestic Workers Already Employed?
The Bill does not automatically terminate employment.
However, should the Bill become law, employers will be required to verify their documentation of existing foreign employees.
The Most Controversial Requirement of the bill
Perhaps the most debated provision in the Bill is section 12A(2)(b).
This provision would require employers, before employing a foreign national, to satisfy themselves that there are no suitably qualified South African citizens available to fill the position.
At this stage, the Bill does not provide information on how employers would be expected to prove this. Government may issue regulations in the future setting out the process.
For larger businesses with human resources departments, this may be manageable. However, for ordinary South Africans looking to employ a domestic worker, the requirement is a bit more burdensome.
What Are the Potential Benefits?
This Bill could help create greater employment opportunities for South Africans and reduce the exploitation of vulnerable foreign workers.
Whether the Bill ultimately achieves these objectives remains to be seen.
Conclusion
The Employment Services Amendment Bill is one of the most significant proposed reforms to South Africa's labour and immigration laws in many years.
The important point to remember is that the Bill is not yet law. No fines can currently be imposed under these proposed amendments until the Bill is passed.
That said, both businesses and ordinary South Africans who employ foreign nationals would be wise to start getting your workers documents in order, ensure they have compliant visas and work permits.
Should you require advice regarding labour law, immigration law or compliance with employment legislation, contact us today.
For expert legal advice in Cape Town and across the Western Cape, contact the attorneys at Van Deventer & Van Deventer Incorporated. Our Cape Town office is ready to assist you.