South Africa’s newly approved National Labour Migration Policy seeks to attract or retain critical skills needed in the economy, which will be done by identifying skills shortages and enhancing economic competitiveness.

“It also seeks to protect job opportunities for South Africans in a more direct way. And we see this through the use of the quota system that's been proposed and through certain other restrictions on foreign nationals,” Cliffe Dekker Hofmeyr (CDH) employment law associate Sashin Nadioo said in a webinar hosted by the law firm on June 11.

The webinar was hosted by a panel of CDH employment law experts to explore the new National Labour Migration Policy, which was approved by Cabinet for implementation on May 29, along with the Employment Services Amendment Bill, which was simultaneously approved for introduction to Parliament.

“Once the Bill has been introduced to Parliament, it will be published for public comment and referred to the relevant Parliamentary committee for amendment or for debate, firstly, and amendment if necessary,” CDH employment law senior associate Taryn York explained.

The webinar unpacked the introduction of sectoral quotas, restrictions on foreign business visas and the enhanced regulatory framework designed to balance economic growth with local employment priorities.

Naidoo provided context on the scope and intent of the new National Labour Migration Policy, noting that it represented South Africa’s first comprehensive policy dedicated specifically to labour migration.

“It's the broader framework which will underpin South African labour migration laws and regulation. Importantly, now the policy refers to migration and not immigration, and this means, of course, that the focus is not only on inbound movement, but also on the exodus of people from South Africa. And here we're talking about South African citizens who seek opportunities abroad,” Naidoo said.

The panel examined the proposed implementation and enforcement of sectoral quotas for foreign workers and outlined several mechanisms to achieve a balance between protecting local jobs and attracting critical skills.

“Immigration can be used as a tool to further economic growth if it's used correctly and this marks a significant shift in South Africa's approach to immigration, moving us away from a fragmented or risk focused and reactive approach to a more coordinated, evidence-based, development-oriented and rights-based framework,” CDH employment law director Imran Mahomed said.

He said the hope was that South Africa's approach to migration would now be used as a tool to retain the skills the country lacked and desperately needed without compromising opportunities for the South African citizenry.

“The policy also identifies the need for a clearer and more structured process for the hiring of foreign nationals, and this will obviously mean stricter regulation in recruitment practices, the need to prioritise South Africans in the labour market, and placing certain limitations on the employment of foreign nationals,” Mahomed explained.

He added that employers would now also need to ensure that foreign workers were only hired if there was a proven shortage of local skills, and that all workers, regardless of nationality, were treated fairly and provided with decent working conditions.

“One of the things that the policy plans to achieve is the prevention of exploitative practices against foreign nationals. So, we see it as a way in which we can protect the economy as well.

“Further, in the Employment Services Amendment Bill, it expressly states that foreign nationals enjoy the same protections as South African citizens,” Mahomed said.

A key change, once the policy becomes law, is that the Minister of Employment and Labour will have the authority to set quotas in designated sectors, with an initial focus on agriculture, hospitality, tourism, and construction.

Employers will be required to demonstrate attempts to recruit South African citizens, permanent residents, and refugees prior to hiring foreign nationals, except in cases involving highly skilled occupations.

The policy supports a principle requiring that at least 60% of a workforce consist of South African citizens and permanent residents. However, flexibility will be allowed in instances where critical skills are involved.

Employers will also be expected to develop skills transfer plans for foreign employees, verify the legal status of foreign workers, review the composition of their current workforce, and implement robust recruitment practices.

Naidoo explained that the framework allowed for exemptions in cases where clear evidence of skills shortages among South African citizens were presented.

Enforcement of these laws will involve coordination between the departments of Employment and Labour and Home Affairs, incorporating the use of technology and intelligence gathering to monitor compliance.

The panel further addressed the mechanisms proposed to ensure effective skills transfer from foreign workers to South African citizens and permanent residents. It was explained that the Employment Services Amendment Bill required skills transfer plans for all foreign national employees, regardless of visa category.

While specific regulatory details have not yet been released, employers will likely be required to identify South African citizens, permanent residents, or refugees who would benefit from the transfer of skills. They would also need to specify the skills to be transferred, create timelines for the transfer process, and outline the methods by which the transfer would be executed.

The policy recommends using sector education and training authorities to develop implementation guidelines for these skills transfer plans. The primary objective is to ensure that foreign workers contribute to the development of local skills, especially in sectors experiencing shortages.

Naidoo noted that the Minister would have the power to make regulations specifying the requirements of these plans in the future. He advised that employers begin reviewing their employment practices now and start developing skills transfer frameworks in anticipation of the forthcoming regulations.

The panel also addressed how the proposed amendments to the Employment Services Act would interact with the Department of Home Affairs' Operation New Broom.

Operation New Broom is a nationwide campaign aimed at combating illegal immigration. It aims to use biometric technology and an increased law enforcement presence, primarily in urban areas, to identify, arrest and deport individuals found to be residing in South Africa without legal documentation. The campaign includes a call for undocumented individuals to voluntarily leave the country.

The integration of the Employment Services Amendment Bill with Operation New Broom is designed to establish a coordinated approach to managing foreign employment. The Bill will require employers to verify the legal status of all foreign workers.

Simultaneously, Operation New Broom’s use of biometric technology will serve to verify immigration status and identify undocumented individuals.

York said that this combined approach was intended to create a multi-layered enforcement mechanism in which employers would be required to check work permits proactively, while government agencies would use biometric data to cross-check records, reduce the use of fraudulent documentation and improve compliance with labour regulations.