THE government appears not to know the number of foreign nationals in the country’s labour market and is considering introducing quotas to limit them from competing for the few available technical and low skilled jobs.
The national labour migration policy approved by Cabinet this week, has noted that imposing quotas is a worldwide phenomenon and that European Union member states also implement such measures for managing labour migration from developing countries.
In South Africa, the Constitutional Court in 2022 affirmed that the constitutional reservation of the right to trade, occupation or profession to citizens is not uncommon in democracies and that the country has an obligation to protect its citizens’ interests.
Despite the apex court’s judgment, the policy also accepted that a number of Supreme Court of Appeal rulings have found that the total exclusion from work of migrant workers, or particular categories, may amount to the impairment of the constitutional right to human dignity.
However, the government admitted that such a move would require enabling legal provisions.
“The imposition of quotas to limit the number of foreign nationals from competing for the few technical and low skilled jobs available is being considered,” stated the policy.
In addition, it noted that the imposition of quotas to regulate competition between South African and foreign workers in the informal economy for limited available public space and access to markets and other resources needs to be considered.
“This would require enabling legal provisions to this effect at local government level – taking into account the requirement that the imposition of quotas has to be informed by comprehensive statistical evidence with regard to each work sector in the informal economy,” the policy explained.
Among other concerns is that the continued employment of foreign nationals in excess of a quota imposed on the sector or occupation, especially those who are permanently employed, is a particularly contentious area as termination of employment under such circumstances may raise labour law procedural considerations in addition to constitutional concerns.
Complicating matters further is that South Africa does not currently have adequate data to measure reliable estimates of the stocks and flows of foreign labour in the country, which makes it difficult to measure the impact of migration on the local labour market.
“It is crucial to obtain reliable information on this to inform appropriate policy responses, especially in view of commonly held public perceptions that the labour market participation of foreigners, including asylum seekers, have a negative impact on the South African labour market and on the ability of South Africans to participate in the labour market,” reads the policy.
Also approved by Cabinet for submission to Parliament is the Employment Services Amendment Bill providing the policy framework and legal basis to regulate the employment of foreign nationals in businesses while promoting national security and interests.
While the existing Employment Services Act has usefully strengthened labour legislation, its current state leaves unaddressed a number of concerns such as the explicit authorisation for private employment agencies to facilitate the recruitment of foreign workers into South Africa and the sourcing and recruitment of foreign workers abroad for employment.
The recruitment of South African workers for overseas placement by South African or foreign private employment agencies or the partnering between local and foreign agencies as well as the activities of foreign private employment agencies, locally or foreign-owned private employment agencies online recruitment activities are other areas of concern in existing legislation.
The bill also proposes the regulation of labour brokers to prevent worker exploitation such as the provision of cheap labour through undocumented foreign nationals.
Trade union federation Cosatu said enabling Employment and Labour Minister Nomakhosazana Meth to set limits on the number of documented migrant workers that can be employed in a workplace and an economic sector, is critical for an economy battling dangerously high and rising unemployment levels of 43.1% overall and 72% for youth.
