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It is noted that every family in South Africa is affected by unemployment.

The aim is to try to stop the slippery slope that we are on with regard to retrenchments. We also need to start developing an environment for small businesses to thrive. There are many factors which would help small businesses, such as access to capital, training and the destruction of red tape. In this column I concentrate on our labour legislation and our regulations.

The regulatory environment within our labour legislation is not conducive to job creation. There are many ideas that have come from the readers as to how the Labour Department can regulate the harsh environment to assist small business.

The Employment Services Act No 4 of 2014, which is designed to provide for the establishment of schemes to promote the employment of young job seekers and other vulnerable persons, has to provide schemes to assist employees in distressed companies to retain employment. It goes on to state that it is going to establish an employment services board and is also to provide for the establishment of Productivity SA. This piece of legislation is, unfortunately, unknown and is seldom tapped into.

No one can argue with the stated intention to “improve the employment and re-employment prospects of employees facing retrenchments”. It is also noble that they are intending to facilitate access to education and training for job seekers.

We hear very little about the legislation, but it does exist on our statute book and should be promoted and enhanced. The purpose can only be achieved by establishing schemes and other measures to promote employment and by providing comprehensive and integrated, free public employment services.

The Labour Department is directed to provide the following:
* Matching work seekers with available work opportunities.
* Registering work seekers.
* Registering job vacancies and other work opportunities.
* Facilitating the placement of work seekers with employers or in other work opportunities.

The legislation goes on to outline a further six provisions, all of which would help job creation if properly implemented. The department may also provide vocational and career counselling including assessment of job seekers to determine suitability. One of the areas that needs focus is the promotion of employment of youth and other vulnerable job seekers. We have in the past referred to the turnaround strategies, the layoffs and retraining or alternative employment opportunities.

A big issue in South Africa today is the employment of foreign nationals, and this is referred to in the legislation.
It must be remembered that an employer may not employ a foreign national within the territory of the Republic of South Africa prior to such foreign national producing an applicable and valid work permit, issued in terms of the Immigration Act.

All employers must satisfy themselves that there are no other people in South Africa with suitable skills to fill that vacancy. If there are no such people, then an employer can turn to a foreign national who is in possession of valid papers. Of course, the employers may make use of public employment services or private employment agencies to assist them to recruit employees who are South African citizens or are permanent residents. The legislation calls for the employer to ensure that the validly employed foreign national does undergo a plan to transfer the skills to South Africans.

An employee who is employed without a valid work permit may still claim unfair dismissal and may also have access to our labour laws for ill-treatment. It becomes absolutely imperative to check the paperwork very carefully beforehand, as once the person is employed, it would be difficult to dismiss.

Obviously, an employer may not require a foreign national to perform any work which is not authorised in terms of the work permit. The foreign national cannot engage in work contrary to the terms of the work permit. Although not feasible, the department is trying to create a register of private employment agencies. This would include agencies that are registered as temporary employment services or any agency that seeks to perform other employment services as contemplated in the legislation.

All the employment agencies must apply to the registrar in the prescribed form or manner in order to register as a private employment agency.

* Michael Bagraim is a labour lawyer.

Join us on the 20th September 2019 for Michael Bagraim’s Labour Law Seminar. Click for more information!
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