Employment and Labour Minister Thulas Nxesi on February 28 released the draft National Labour Migration Bill, which proposes amendments to the Employment Services Act, for public comment.

The Bill proposes that the Minister set quotas for the total number of documented foreign nationals with work visas who can be employed in certain economic sectors.

Further, the Bill aims to provide a framework to facilitate and regulate the employment of foreign nationals in South Africa, the employment of South Africans abroad and the reintegration and employment of South Africans residing or working abroad into the South African economy.

"The proposed National Labour Migration Bill aims to achieve balance across four areas, including addressing South Africans' expectations regarding access to work opportunities, given worsening unemployment and the perception that foreign nationals are distorting labour market access," Nxesi said.

He added that the Department of Home Affairs was also reviewing existing legislation and strengthening the Border Management Authority to secure porous borders and allow for the orderly movement of people through ports of entry only.

"The National Labour Migration Policy covers broad but interrelated areas where policy gaps exist, including labour migration governance and management, data for evidence-based policy monitoring and evaluation, as well as covering labour migration into and from South Africa," the Minister noted.

The Department of Employment and Labour researched extensively and benchmarked the proposed policy against international standards and the policy was based on international best practices, Nxesi said.

"It has become increasingly apparent that, given the rapid expansion of international migrations flows, South Africa needs to develop appropriate policies to effectively manage this," he said.

Further, South Africa is a signatory to various international conventions governing rights of migrants and refugees, and all the policies being proposing have been developed in the ambit of the Constitution. Government must ensure that it protected migrants and their families in accordance with international standards and guidelines, Nxesi noted.

Additionally, the proposed policy would also be implemented in the context of regional integration and cooperation imperatives at the Southern African Development Community and African Union level, he pointed out.

"The National Labour Migration Bill goes hand-in-hand with the proposed Employment Services Act amendment Bill by providing a policy framework and legal basis to regulate the extent to which employers can employ foreign nationals in their establishments while protecting the rights of migrants."

The proposed amendment Bill provides a framework that will enable the Minister to set quotas for the employment of foreign nationals and the quotas may apply to a sector of the economy, an occupational category or geographic area. The Minister can establish quotas in a sector only after consultation with the Employment Services Board and considering public comments, he explained.

Meanwhile, the Bill proposes that: "A person who employs a foreign national to work within the territory of the Republic of South Africa must employ such foreign national on terms and conditions of employment that are not inferior to those which would be provided to a South African citizen, permanent resident or refugee."

"This has been a sensitive issue and the labour market is distorted where people are exploiting desperate migrants by giving them low wages and without conditions of employment attached or the benefits they are supposed to enjoy," Nxesi said.

"The proposed amendments to the Employment Services Act of 2014 aims to limit the extent [to which] employers can employ a number of foreign nationals in possession of a valid work visa and codifies the implications for the employer to engage foreign nationals to promote, among other, that they only employ foreign nationals entitled to working in terms of migration and refugee legislation or any other provisions.

"Employers must be certain that a foreign national is entitled to work in South Africa in the relevant position and that they have satisfied themselves that no South Africans with the requisite skills are available to fill the vacancy. Employers must also prepare skills transfer plans, where appropriate," Nxesi pointed out.

Additionally, the National Labour Migration Policy will be implemented through small business interventions and the enforcement of a list of sectors where foreign nationals cannot be allocated business visas, as well as proposes amendments to the National Small Business Act to limit foreign nationals establishing small, medium-sized and microenterprises and trading in some sectors of the economy, Nxesi said.

However, the Bill states that a notice issued in terms of the proposed amendments must "exclude small employers, as defined in that notice, from complying with the quotas specified in the notice".

Department of Employment and Labour public employment service deputy director-general Sam Morotoba said 14 national departments and their Ministers led the process with the assistance of the International Labour Organisation, as well as experts and academics.

"There are about 1.6-million migrants who have remained in South Africa after their work visas expired. Issues of migration are complex and sensitive worldwide and, if not handled properly, can result in many different challenges and unintended impacts," he said.

Further, several of South Africa's neighbouring countries, as well as major economies in Africa, have stricter labour migration legislation than South Africa, and the aim of the proposed amendments is to balance international and Constitutional obligations, Morotoba noted.

"We are calling on all parties to engage during the public consultation process to create an effective final Bill."

Nxesi adds that public consultation processes will be concluded within 90 days of publishing the Bill for comment, after which it may be sent back to Cabinet and another round of consultations, or taken to the National Economic Development and Labour Council for consideration.