Presence of foreign nationals within South African Labour Market: briefing by Departments of Labour & Home Affairs - Day 1

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Employment and Labour

15 August 2011
Chairperson: Mr M Nchabeleng (ANC), Co-Chairperson Ms M Maunye (ANC)
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Meeting Summary

The agenda of the meeting was a joint briefing by the Department of Home Affairs (DHA) and the Department of Labour (DoL) on the presence of foreign nationals in the South Africa labour market and how the amendments to the Immigration Act and Labour Act address the issue. The Chairperson pointed out that committee members had raised a number of concerns about this, especially with Public Employment Services. This meeting was not a xenophobic meeting and that no economy or country in the world was built on the resources or labour from one country alone.

The presentation by the DoL revealed a shortcoming in that there was not any specific legislation dealing with migrant and immigration labour and hence the DoL was dependant on the Immigration Act which did not have any legal basis to deal with challenges posed by migrant workers. In order to address those challenges, the DoL suggested that a legal framework be established in order to provide a legal basis for PES to manage employment services including labour migration.

The DHA presentation revealed that there was fierce competition among the very vulnerable people for work, basic services and resources. It was also noted that there was poor management of risks associated with the adequate screening of foreign national who sought to enter South Africa. One of the challenges that they faced was a lack of integration of systems which presented an opportunity for individuals to reside in different regimes and enjoy multiple benefits under assumed identities.

Meeting report

The Chairperson noted the agenda and said that committee members had raised a number of concerns in this regard, especially with public employment services (PES). Jobseekers were registered in the jobseeker database including unemployed graduates. He gave an example of a University of Cape Town graduate who had attained a Bsc Engineering degree and ended up driving taxis because he could not get a job anywhere. At the same time there were highly qualified foreigners with permits who had the same skills as these unemployed graduates. A number of companies recruited people without having discussed the issue with DoL. The Immigration Act was supposed to be amended in order to solve the problems that DoL was facing on how they could recruit South African labour. The Chairperson emphasised that the meeting was not a xenophobic meeting. There was no economy in the world that was built by the labour and resources of one country alone.

Mr Sam Morotoba, Deputy Director-General: Public Employment Services, DoL, gave an outline of the presentation. It dealt with the legislative framework, the role of the Department of Labour in labour migration management and how to address the challenges. The role of DoL was found in the Immigration Amendment Act of 2004. DoL had to protect and safeguard the contribution of foreigners in the South African labour market so that this did not adversely impact on the existing labour standards and the rights and expectations of South African workers. The current labour laws embraced the spirit and intentions of the International Labour Organisation conventions. The current labour legislation applied equally to migrant workers working in South Africa. The shortcoming was there was not specific legislation that dealt with migrant and immigration of labour
and there has no legal basis to deal with challenges posed by migrant workers) hence DoL was dependent on the Immigration Act.

There were a number of envisaged improvements under the new Employment Services Bill which sought to strengthen existing employment service functions that remained within DoL (under the Sk-ills Development Act). The Bill was said to draw on a wealth of international experience, challenges and it sought to assist employers and job seekers to adjust to the changing economic situations. In addressing the challenges that DoL faced, a legal framework would be established that would provide the legal basis for Public Employment Services to manage employment services including labour migration. There would also be skills transfer to locals based on the law for regulatory purposes and DoL would ensure an alignment with the Immigration Act of 2002 as amended.

Mr Jackson McKay, Deputy Director-General: Immigration, DHA, said South Africa was part of a global village and DHA managed the movement of people in and out of its boundaries. South Africa was a member of the United Nations and the African Union and it was also a signatory to the convention and protocol relating to migration. Johannesburg existed only because of the economic activity of migrant workers. Globally there was an increasing number of desperate refugees and economic migrants and South Africa was one of the preferred destinations because of the the easy access to documents.

There was often fierce competition among very vulnerable people for work, basic services and resources. There was poor management of risks associated with the adequate screening of foreign nationals who sought to enter the country. There was a need to secure South African borders against major risks and threats while facilitating the movement of persons and goods. The categories of work permits were business, corporate, exceptional skills, general, quota and intra company work permits, to mention a few. From April to June 2011, 672 corporate permits had been issued, 699 for exceptional skills, 3 203 for general work permits and 59 363 work permits under the Zimbabwean Dispensation Programme. The challenges that the Department faced was a lack of integration of systems which made it possible for individuals to reside in different regimes within the Department's database and at times under different names. This enabled some of them to enjoy multiple benefits under assumed identities. There was also a need to ensure that South Africans understood and supported immigration and immigrants in terms of the value added to national, economic, social and cultural development. Furthermore lowly skilled and unskilled economic immigrants were not catered for under the present permitting regime.

A number of proposed amendments were being discussed such as providing for the mandatory transmission and use of information on advanced passenger processing and passenger name record information, revising provisions that related to permanent residence and penal provisions, rationalizing the permitting regime and introducing permits for low and unskilled immigrants. In addition all temporary residence permits would be called visas with the exception of permanant residence permits. In addition, intra company permits would be issued for a period of four years once the Immigration Act of 2007 comes into effect. Furthermore no exchange visa would be issued to any person where the offer to conduct work pertained to undesirable work. Mr McKay noted that beyond amendments there were immigration policy processes that included the drafting of a discussion document, consultations with stakeholders, the drafting of an immigration policy review and government stakeholder engagement.

Mr A Williams (ANC) asked whether the visas issued to Zimbabweans under the Zimbabwean Dispensation Programme had expiry dates and how many Zimbabweans were in South Africa and who monitored them if there was an expiry date. He asked why the map had not shown a migration by workers from Swaziland into South Africa.

Mr A Gaum (ANC) noted that there was no real regime that dealt with low skilled workers. He asked whether DoL planned to address this in the new Immigration Bill and whether there were any other lacunae. He asked how illegal immigrants were policed in the country. There was a management problem at refugee camps. He asked what the DHA intended to do in order to manage the situation better and determine the status of refugees much more quickly.

Mr I Ollis (DA) said that the presentation by DoL was inadequate. He asked what pressure DoL exerted so that people got visas and were documented. The Member went on to ask whether South Africa had implemented the United Nations Resolution. He said that it seemed as if operations on the ground were not functioning properly when it came to refugees and asylum seekers. It was more than a risk management issue when people crossed the border. The Member asked why so many low and unskilled permits had been issued and what would happen to the balance of Zimbabweans who had not been issued permits.

Ms A Lovemore (DA) asked if DoL had studied the Bill through its passage in Parliament. She pointed out that DoL was not a required department on the Immigration Advisory Board in terms of Clause 3 of the new Bill. The Member asked whether DoL was able to gazette critical skills, undesirable businesses and undesirable work since permits could not be issued unless the lists were gazetted. The Member asked what was meant by “there was often fierce competition among very vulnerable people for work, basic services and resources" in the DHA presentation and on what basis was the statement made. She asked whether there were any other risks that the DHA faced. What were the multiple benefits illegal immigrants were enjoying? The introduction of low skill and unskilled permits was not in the Immigration Bill. She asked if the DHA was moving towards the African solution of having camps for refugees.

The Chairperson said that refugee camps were not only found in Africa but all over the world. He reiterated that the discussion was about how South African laws would create jobs and if foreign nationals were in South Africa what values were they adding to the country in terms of training. Other issues related to the DHA did not need to be discussed.

Mr G Boinamo (DA) noted that during the 2010 World Cup the DHA and the South African Police Service managed to keep undesirable elements out of South Africa. He was disappointed because it appeared as if it was done for the benefit of tourists but everything collapsed thereafter. The DHA was asked to revert to this. He asked how many foreign professional job seekers were in the country. He requested a breakdown of the figures according to country of origin and whether they had entered the country legally. He asked what measures had been put in place to ensure that foreign nationals were not employed in jobs for which South Africans were qualified and what was the DHA doing to ensure that the South African borders were not porous.

Ms G Bothman (ANC) said that what the Chairperson had said was relevant. The two Departments were urged to sit together and discuss matters of concern and such a report was supposed to be presented before Parliament.

The Chairperson asked if there was anything that Department wanted to have done so that it could have legal standing and take legal action through its inspectors in the courts against employers.

Mr D Kgnanare (COPE) asked if there was any way that the DHA followed up on marriages since some of the marriages were marriages of convenience and thereafter the foreigners would enter the labour market. What steps were taken when employers employed migrants illegally since fines seemed to be inadequate? How effective was Public Employment Services? Did the Departments verify the availability of funds of people who said they intended to invest in the country? Lastly, he asked how many times the DHA followed up on people who had entered in the country.

Ms H Line (ANC) asked why the DHA issued general work permits. DoL had not highlighted the challenges that they faced yet they said they were addressing the challenges. The member also noted that 59 363 work permits had been issued under the Zimbabwean Dispensation Programme between April and June 2011 hence there could be more than 1 million people who were working in South Africa.

The Chairperson said that the number of permits that had been issued was very scary especially in light of the fact that there was no way of monitoring the permits and that there was no follow up. He said some responses should be given in writing.

Mr McKay responded that the statistics on the first quarter reflected largely on the number of permits that had been given to Zimbabweans. There was a need to deal with the irregular migration from Zimbabwe hence the Zimbabwean Dispensation Programme was started. The permits issued to Zimbabweans were for four years and they were either work, study or business permits. The Zimbabwean permits were renewable upon application after that period.

Mr McKay stated that he did not have the number of job seekers that were there in the country. The protection of South African borders was the responsibility of the Department of Defence. He responded to the question on low and unskilled workers by saying that the DHA had raised the challenges that they faced when it came to mixed migration. The need was to find employment in South Africa and this loophole was exploited. The asylum permit allowed one to work and study in South Africa and it was for free, hence it was exploited. The DHA found itself in a precarious position. When courts decided that an asylum permit was to be used for both work and study there was a huge influx of economic migrants to South Africa and the DHA could not deal with the large volumes - hence there were backlogs. Asylum seekers were required to renew their permits after six months as opposed to three months in order for the Department to deal with backlogs. The DHA, under the direction of the Deputy Minister, was reviewing the area of asylum seeker management. About biometrics and the taking of fingerprints of foreigners, there was a lot of debate on this since this could make South Africa an unfavorable destination. The Department was looking at having biometrics for all people of South Africa.

Mr McKay pointed out that South Africa was a signatory to the United Nations Resolutions on migration and its laws were based on the Resolutions. South Africa was commended on a regular basis when they attended the United Nations High Commission for Refugees on how the country dealt with asylum seekers, refugees and the implementation of United Nations protocols in the country. He responded to the question on why so many permits had been issued for low skilled people, saying that migration trends showed that a lot of people came into South Africa who were not highly skilled individuals. Most of the permits were because of the Zimbabwean Dispensation Programme. During the World Cup, the DHA worked well with the South African Police Service. All processes that had been in place prior to the World Cup were still in place.

Mr Jack Monedi, DHA Acting Chief Director: Permits, commented on marriages of convenience, saying the Department conducted some investigations to ensure that marriages were authentic and this included screening and interviewing both partners. There has been a process to amend the Marriage Act and the new regulations were still in the process of being concluded. The regulations sought to impose penalties on marriage officials and South Africans who were colluding with foreigners. In addition, penalties would also be imposed on the foreigners. There was supposed to be a stakeholder management approach on this.

The Chairperson asked what actions would be taken against priests and how did the Department verify whether the marriages existed.

Mr Monedi responded that the intention of the regulations was to be able to verify the authenticity of the marriage. The marriage was supposed to be subjected to a thorough investigation so that the Department could monitor whether or not it was a real marriage.

Mr McKay said that the assertions that he had made in the presentation were the assertions of the DHA and the phrase on page 6 was based on the occurrence of xenophobic violence in the country which happened in the poorest of the poor communities. The Department had noted that there was an inordinate number of “South Africans” moving to Zimbabwe. The Department then conducted an operation in which they found in excess of 3000 Zimbabweans carrying counterfeit South African passports. The statement he had made earlier in the presentation was made based on a number of facts. In addition foreigners “benefited” from South Africa in that when it was time for pensions to be paid, the foreigners would cross the border and collect the pension money. Some of the issues were based on trends that had been seen in South Africa.

Mr Boinamo asked what happened to the illegal passports that had been confiscated.

Ms Lovemore said that some of her questions had not been answered.

Mr Ollis also noted that the question he had asked on capacity to deal with the large number of asylum seekers had not been answered.

The Chairperson said that some of the questions being asked were not relevant to the agenda of the meeting.

Mr McKay responded that the issues that he had raised were beyond the amendments. The issues were currently being discussed. The issue of low skilled permits was not the intention of the Amendment Act. He pointed out that the Zimbabweans who had not applied would be deported if they were illegal.

Mr Major Kobese, DHA Deputy Director General: Policy Support, agreed there were challenges in how the economy was being managed. A number of South Africans had been displaced by foreign nationals in the running of local businesses. An
inter-Ministerial Committee (IMC) had been established by Cabinet in order to address the issues.

Mr Morotoba responded that the issues that they were confronting were complaints that the Department had received from legal and illegal immigrants on how badly they were treated in their various workplaces and this translated to the undermining of local labour laws. Inspections were conducted and it was noted that migrants and locals were housed separately on farms. There was also an abuse when it came to work permits. DoL were part of the Immigration Board and they participated on the Board where they would try to reach consensus on pertinent issues. There were also incidents were DoL embarked on joint campaigns. DoL did not have powers of arrest. They could only issue notices and by the time the police arrived, the illegal immigrants would have left the place. These were some of the challenges they faced. On the effectiveness of PES, he said that where there were weaknesses, the necessary legislative framework was needed. The Department participated in the issuing of quota work permits. In addition DoL and Home Affairs conducted a number of sessions together.  On DoL being on the Immigration Board, he said that it was up to the Minister to decide.

Mr Les Kettledas, DOL Deputy Director-General: Labour Policy, responded to the question of people being exploited by employers that legislation applied to all people irrespective of whether the people were legal or not. If an employer was found to have irregularly paid an employee, the employer would be required to pay the employee the outstanding balance. The illegality issue would then be referred to the DHA who would decide whether or not to deport the person.

The Chairperson asked what would happen if the employer refused to pay an employee.

Mr Kettledas responded that a written undertaking to pay the outstanding amount would be required. If not, then a compliance order would be issued. If the compliance order was not complied with, then an order of the court would be issued by the Labour Court. The process was cumbersome since one could wait a long time before one got paid; hence the issue was being addressed in the amendments in order to strengthen the enforcement mechanisms.

The Chairperson said that worker rights were human rights. When people entered into South Africa they were supposed to be treated as humans. Workers were supposed to be informed of their rights. There was need to find a way to have people in the Musina area treated fairly. The situation was much worse for domestic workers who were paid with food. Apartheid was to blame for some of the problems in the country and it would take some time to rectify the situation.

The meeting was adjourned.


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