1 Role of the Department of Labour in International /Cross- Border Labour Migration (ICBLM) 17 August 2011.

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Role of the Department of Labour in International /Cross-Border

Labour Migration (ICBLM)17 August 2011

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Presentation Outline

1. Legislative frame work

2. DOL’s role in labour migration management

3. Challenges experienced in current labour

migration management process

4. Proposed interventions

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1. Legislative frame work Immigration Act, 2002 as amended

Preamble globalisation policy principles that impact on the work of the DOL:

• S1.(h) “The S. African economy may have access at all times to the full measure of needed contributions by foreigners”

• S1.(i) “The contribution of foreigners in the S. African labour market does not adversely impact on the existing labour standards and the rights and expectations of South African workers”

• S1.(j) “a policy connection is maintained between foreigners working in S. Africa and the training of our citizens”

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Existing laws and ILO Conventions on Labour Migrant Management.

Existing Labour Laws– Current labour legislation apply equally to migrant workers

working in SA (i.e both legal and illegal migrants).

As member of the ILO, SA must embrace the spirit and intentions of the following Conventions:

– Convention No. C97: “Migration for Employment Convention (Revised) 1949” &

– “Migrant Worker (Supplementary Provisions) Convention 1975.– International Labour Office Migration (IOM) Guidelines

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2. DOL’s role in migration management

Types of Permits that DOL makes recommendations to DHA on:

• General Work permit s(19)(2)(for individual);• Corporate permit s(21)(1) (Group) corporate

worker issued with Authorisation certificate;• Quota permit s(19)(1): migrants with scarce &

critical skills;• Exceptional skills s(19)(4) work permit.

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2.1. DOL’s role in General Work & Corporate Permits.

• The process involves:

– Employer applies at DHA;– DHA submits permit application form to DoL, forms: (BI-1738-

Gen. WP), (BI-1743-Corp. p), (BI-1739-Renewal)or BI-1740-status change);

– DoL registers vacancy on ESSA system;– DoL matches opportunity to registered jobseekers;– DoL inspects employer for labour legislation compliance;– DoL considers & recommends for or against WP issuance; – DHA issues/withholds general WP (individual) to labour migrant

or corporate permit (group) to employer.

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Work Permit Adjudication Process

• For General (Individual) work permit s(21)(1), DOL Recommends positive or negative to Home Affairs for work permit issuance based on:– Presence / absence of requisite skills within S. African labour market-

through labour sources;

– Applicant’s/employer’s compliance with labour legislation: Basic employment conditions, submission of Employment Equity plans & skills development plans for skills transfer;

– Issue “Salary Benchmarking Letter” for positive recommendations.

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2.2. Work permitting system overview

Labour migrant Employer

Application package

DoLDHA

Work Permit

Decision

Compliance

inspecti

on

RecommendationTo DHA-letter.

WP application

To DHA

Corporate

permit

Gen

era

l

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Permitting Process Flow

Employer

LabourMigrant

1.Application Form;

2. Employment Contract;

3. SAQA evaluation Certificate -where applicable e.g all foreign qualifications;

1.Application form;2. Employment Contract;3. Register Opportunity;4. SAQA evaluation Certificate -where applicable;5. Perform matching; 6. Inspection report7. WSP submitted;8. EE Plan submitted;

DHA DoL

WPApplication

form

WP

Application

Job

ap

plicati

on

Perm

it a

pplic

atio

n

Recommend

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2.3. Large Account Companies permits

• DHA nominates beneficiary companies through a selection panel;

• DHA submit the nominated companies list to DoL for recommendations/confirmations;

• DoL verifies the following legal compliances:– Work place Skills Plans (WSP) submission (DHET);– Written evidence of skills dev. Implementation (DHET);– Employment Equity Plan (EEP) submissions (LP & IR);– DoL confirms or adjusts the nomination list (PES).– DoL provide feed back to DHA.

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3. Challenges in migrant labour management

The Department’s Labour Centres, CCMA, UIF and CF receives regular complaints:

• Widespread abuse and exploitation of migrant workers• Undermining of existing labour standards• Inferior standards or limited rights afforded to migrant

workers • Abuse of the work permit systems by some unscrupulous

employers• Overlooking of local labour • Use of unrealistic requirements or myth to justify

employment of foreign migrant workers.• Unreliable data on the number of migrant workers in the

country

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3.1. Challenges in migrant labour management

• Role of PEAs and complexities in dispute resolutions where migrant workers are involved

• Complexities in enforcing compliance • Insufficient legal framework on DOL side to address other

aspects relating to migrant workers• Exploitation of coordination / policy gaps by some

employers• Unintended consequences arising from Bilateral and Trade

Agreements • The need to protect vulnerable S. African citizens against unfair

competition for scarce employment opportunities within the country with foreign labour migrants.

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4. Envisaged improvements under the New Employment Services Bill 2010

• The New Employment Services Bill, 2010 aims to amongst others:– strengthen existing employment services functions that remained

within the Department of Labour under the Skills Development Act, 1998, as amended, following the President’s Proclamation published in Government Gazette No 32549, dated 04 September 2009.

- The ES Bill drew on a wealth of international experiences and best practices, and seek to assist employers and job seekers to adjust to changing economic situations.

– Ensure that employment of foreign nationals does not compromise the SA citizen’s opportunities for employment, employment conditions, economic development or social stability

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4.1. Proposed interventions

The Employment Services Bill has provisions that will enable the DOL to work closely with other Departments and stakeholders in migrant labour management. Section 9 provides for:

- employment of foreign workers

- powers to the Minister to determine categories of work under which foreign nationals may be employed

- steps to be followed before employment of foreign nationals

- skills transfer plan in the event that a skilled foreign migrant is employed

- Prohibitions that an employer may not engage upon

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Proposed interventions

Section 10 provides for:

Reporting and filling of vacancies

Section 11 provides for:

Maintenance of employment information

Chapter 3 provides for:

A legal framework for the registration and licensing of Private Employment Agencies (PEA’s) in order to protect citizens and foreign nationals.

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4.2. Other proposed interventions

Other interventions include:• Drawing on the wealth of ILO Conventions and IOM

information to develop guidelines, Codes of Best , Educational materials etc to address the plight of migrant workers and Refugees in the SA Labour Market.

• Strengthening coordination, policy intervention and enforcement amongst DOL; DHET; DHA; the DTI, SAPS

• Strengthening DOL capacity across Labour Centers to efficiently and effectively manage migrant Visa applications and to enforce compliance

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THANK YOU