Written submissions on the Draft Employment Services Amendment Bill

18 April 2022

Hon. M.L. Dunjwa

Chairperson of the Portfolio Committee on Employment and labour

For attention:

Ms Esther Tloane

Esther.Tloane@labour.gov.za

Mr Bobani Mantombi

Mantombi.Bobani@labour.gov.za

Dear Hon. Dunjwa,

WRITTEN SUBMISSIONS ON THE DRAFT EMPLOYMENT SERVICES AMENDMENT BILL

The Inclusive Society Institute

The Inclusive Society Institute (ISI) is an autonomous and independent entity which strives to promote multi-party democracy in South Africa. It does so by conducting policy research and analysis, driving education on democracy and hosting dialogues on relevant topics. Furthermore, the institute cultivates relationships with like-minded local and international organisations to exchange ideas on how to best promote social democracy. The ISI advocates for steps, legislative or otherwise, which support these ideals while voicing its concerns on any measures that encroaches on democratic freedoms.

Background

On 28 February 2022, the Department of Employment and Labour (DoEL) published the Draft National Labour Migration Policy and Employment Services Amendment Bill, 2014 (the draft Bill) in the Government Gazette No. 45962 (GG, 2022). Interested persons were invited to submit comments on the draft Bill within 90 days of publication of the notice.

The ISI welcomes the opportunity to share its comments. In the event the DoEL decides to host oral hearings on the matter, the ISI would like to request that it be given an opportunity to share its comments on the proposed amendments.

The Bill

The draft Bill is an important document seeking to regulate conditions of employment within the borders of South Africa as well as foreign employment of citizens elsewhere in the world. It will have an impact on the livelihoods of millions of South Africans, employees and business owners alike, and on foreigners seeking opportunities in the country. The DoEL is therefore urged to proceed with caution in how the legislation is amended.

Concerns

The ISI’s concerns pertain to the following particular proposed amendment (pg. 10,11 of the Bill):

“2.

(b) by the deletion in subsection (2) of the term “and” at the end of paragraph (d), the insertion of the term “and” at the end of paragraph (e), and the addition of the following paragraph:

“(f) providing a framework to facilitate and regulate—

(i)  the employment of foreign nationals in South Africa;

(ii)  the employment of South Africans abroad; and

(iii) the reintegration and employment of South Africans residing or working abroad into the South African economy”.

Points (ii) and (iii) of the amendment suggests facilitation and/or regulation of the employment of South Africans abroad and the reintegration and employment of South Africans residing or working abroad into the South African economy.

The Draft National Labour Migration Policy for South Africa 2022 (DoEL, 2022) provides insight to the DoEL’s possible intentions with the proposed amendment:

Regulating the recruitment of South Africans for employment abroad

The overarching intention is to protect South Africans looking for employment abroad against malpractice by recruitment agencies. This includes the regulation of but is not confined to, the fees charged by recruiters.

Providing the necessary legislation to support a coordinated programme through which to retain critical skills and assist the diaspora seeking to return to South Africa in finding employment.

The NLMP suggests a programme which may include incentives for the retention of critical skills.

The amendments will give support to the possible creation of a centralised employment system.

The system will provide a one-stop-shop for both work-seekers and recruiters. It will provide services for South Africans looking for an opportunity abroad as well as a dedicated unit for the placement of South Africans working abroad looking to return. A centralised system will also provide government, and other relevant parties, with necessary data on the country’s labour dynamics and the skill shortages which may exist. This in turn can be used to better direct government investment in specific sectors for example.

The NLMP therefore illustrates the intent of the proposed amendments and how it supports the DoEL’s efforts to assist government in streamlining South Africa’s migration policy. From the ISI’s interactions with experts, concerns however exist that the wording of the amendment does not clearly reflect this. The amendment is vague, ambiguous and contains no link to the draft policy as set out in the NLMP. This leaves the amendment open to future different and possibly damaging interpretations.

It could lead to the following adverse scenarios:

The legislation could be used to limit or prohibit individuals with specific skills from seeking employment abroad. For example, government could use the amendment as a blanket to force medical personnel (doctors and nurses) to work within the country’s borders for a specified period following the completion of their studies. Such a measure is in contravention of Art. 21 of the South African Constitution which affords citizens freedom of movement and residence; and Art. 22 of the same Constitution that states that “Every citizen has the right to choose their trade, occupation or profession freely” (Const.,1996). Therefore, any measure which inhibits South Africans from seeking employment abroad may be interpreted as infringing on their right to choose freely.

Passing regulations which forces South Africans working abroad to adhere to special taxations like contributing to a social fund.

It could allow for strict control over and, to an extreme extent, government interference with recruitment agencies. Limiting their capacity in such a way they are unable to provide the available services to South Africans looking for opportunities outside the country’s borders.

Burdensome regulations could discourage international corporates, who regularly transfer skills between different countries, to invest in further employment in South Africa.

Adding further migration legislation could overlap with work being conducted by other governmental departments. This in turn expands the already bloated civil service without adding extra value.

The proposed amendments further contradict Government’s stated objective of cutting red tape in that it saddles business with more administration and regulations it needs to adhere to. In the 2022 State of the Nation address, President Cyril Ramaphosa announced the establishment of a special unit with the sole mandate of exploring ways to reduce unnecessary bureaucratic systems (Pres,2022). The goal is to support business and employment growth. The proposed amendments will counter these steps.

Recommendations

The ISI recommends the following:

• Scrap the amendments in its entirety. The benefit the DoEL seeks to gain by implementing the legislation pales in comparison to the dire consequences it may hold for the strained labour market. The vague wording leaves it open to various interpretations and therefore could be utilised for nefarious, or even unconstitutional, purposes. Furthermore, expanding the bureaucratic burden on business in the current economic climate should be avoided.

or;

• Adapt the amendment to reflect the DoEL’s specific intentions as set out in the NLMP.

Conclusion

Sweeping amendments to South Africa’s employment legislation will have far reaching consequences. The DoEL should be wary of further burdening the South African labour market which creates obstacles to much-needed job creation. If the department finds it necessary to proceed with the amendments, it should be noted that vague and ambiguous legislation could present dangerous pitfalls for generations to come.

Sincerely yours,

D.W. SWANEPOEL

CHIEF EXECUTIVE OFFICER

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