An examination of the legal obligations of employers when hiring foreign workers was communicated during corporate law firm Cliffe Dekker Hofmeyr’s Immigration Compliance and Workplace Enforcement webinar which took place on October 11, under the themes of assessing the intersection of immigration law and employment practices, and criminal liability for businesses operating in key sectors of the economy, including agriculture and hospitality. 

With a sharp increase in the amount of blitz inspections and raids administered by the Department of Employment and Labour (DEL), Cliffe Dekker Hofmeyr Employment Law director Imraan Mahomed noted the importance of advising employers of their rights and obligations in terms of employment law.

He also noted the department’s plan to significantly expand its compliance inspectorate from 2 000 to 20 000 inspectors. 

“So far, from what we have observed, there have been fines worth more than R10-million in [for example] the hospitality industry. These numbers are drastic and we can see that there is a significant spike by the DEL in  conducting regular inspections going forward,” Mahomed said.

The underpayment of wages, unlawful deductions, the employment of illegal foreigners and inadequate health and safety measures in the workplace are central issues that have been highlighted by Mahomed.

Monitoring, Compliance Function

Cliffe Dekker Hofmeyr Employment Law senior associate Leila Moosa noted that the DEL fulfils a monitoring and enforcement function in relation to the broad spectrum of employment law and that those powers are derived from the Basic Conditions of Employment Act (BCEA).

“The purpose of the labour inspectors is to ensure that they are promoting monitoring and enforcement compliance within our laws and there are particular ways that the BCEA guides this process,” she said.

Moosa added that the BCEA provides that a labour compliance inspector does not require a warrant or to issue a notice to enter a workplace, and that is also extended to any place where a person purports to provide an employment service.

Although the warrant notice is not specifically required, a labour compliance inspector’s power of entry is limited to what is termed as ‘reasonable times’. 

Moosa said that despite this consideration being specifically defined to what is stated in the BCEA, it can also be extended and determined relative to an employer’s business, and the nature of their operations.

From an immigration perspective, Cliffe Dekker Hofmeyr Employment Law senior associate Taryn York highlighted that employers need to be proactive in preparing for these inspections as well as the imperative of businesses conducting their own internal audits, thereby ensuring that any foreigner in their employ is employed in accordance with their immigration status in the country.

These audits can be far reaching and can include verifying the validity of a work permit, verifying expiry dates and ensuring that positions stated on work visas reflect the positions that the employees hold.

York explained that, as the DEL has confirmed that it will continue with compliance inspections to clamp down on contraventions of both the Immigration Act and various employment legislation, best practice would be to audit the employment status of foreigners on an ongoing basis to avoid being caught on the wrong side of immigration, employment and criminal laws. 

“Business owners, managers, human resource practitioners and foreign national employees themselves are [among] those individuals that have been arrested for non-compliance with the Immigration Act. There are no specific measures to mitigate against this trend, save to be proactive and prepared for any enforcement actions or raids that take place. It is best that employers be prepared.”