---
title: "One step forward, two back? Foreign worker Bill risks deterring skills that create jobs"
description: "South Africa has spent recent years making it easier for employers to bring in scarce skills. The Employment Services Amendment Bill pursues a legitimate goal, but as drafted it risks undoing some of that progress by adding a second, stricter approval layer for foreign nationals the state has already admitted to work."
type: "NewsArticle"
publisher: "Daily Maverick"
site: "https://www.dailymaverick.co.za"
section: "Sponsored Content"
author: "ENS"
author_url: "https://www.dailymaverick.co.za/author/ens-africa/"
canonical_url: "https://www.dailymaverick.co.za/article/2026-10-21-one-step-forward-two-steps-back-the-foreign-worker-bill-that-risks-deterring-the/"
published: "2026-10-21T13:15:29"
updated: "2026-10-21T13:19:29"
lang: "en-ZA"
word_count: 1349
---

# One step forward, two back? Foreign worker Bill risks deterring skills that create jobs

> South Africa has spent recent years making it easier for employers to bring in scarce skills. The Employment Services Amendment Bill pursues a legitimate goal, but as drafted it risks undoing some of that progress by adding a second, stricter approval layer for foreign nationals the state has already admitted to work.

By ENS · Published 21 October 2026, 15:15 SAST · Updated 21 October 2026, 15:19 SAST

## Content

Few would dispute the purpose of the Employment Services Amendment Bill. Regulating labour migration and tackling unlawful employment are legitimate priorities. The question is whether the Bill’s mechanisms are aimed precisely enough to achieve them without catching the lawful, high-skill appointments that South Africa has worked to attract.

On paper, the Bill's intentions are hard to fault. Under the proposed section 2(1)(h), the Act must facilitate and regulate the employment of foreign nationals who are not illegal foreigners. It must do so in a way that:

- gives effect to the right to fair labour practices;
- does not harm the rights and expectations of South African workers;
- promotes the availability of critical skills; and
- promotes work opportunities and training for citizens and permanent residents.

There is nothing wrong with a country deciding how its labour market should work. The state has every right to regulate labour migration, and a clear duty to address unlawful employment.

Many South Africans will welcome the Bill's central aim of curbing unlawful employment, and it is easy to see why. The concern is widely shared and loudly expressed, and the government has made tackling it a stated priority. The Bill aligns key definitions with the Immigration Act and the Refugees Act, closing a gap that has frustrated employers and officials for years. For the purposes of the Act, it places recognised refugees and asylum seekers on the same footing as citizens and permanent residents – although asylum seekers will still need a work endorsement under the Refugees Act. It requires foreign nationals to be employed on terms no less favourable than those offered to South African citizens, which protects migrants from exploitation and local workers from being undercut.

These are real gains, and many South Africans, regard them as long overdue.

The difficulty is that, in tackling one problem, the Bill creates several more.

### **One step forward, two steps back**

Unlawful employment and lawful skills migration are different problems. The first concerns people working without the right to do so. The second concerns people to whom the state has already granted that right, often precisely because their skills are scarce. The Bill treats them as the same thing.

The "labour market test" shows this most clearly. Before recruiting any foreign national, an employer must satisfy itself, in a way still to be prescribed, that there is nobody in the country other than foreign nationals, with the necessary skills to fill the vacancy. It does not ask whether the appointee is the best candidate, or even a reasonable choice. It asks the employer to show that no one else in the country could do the job.

That is a requirement to prove a negative, and it applies to every foreign appointment, whatever its level or purpose. The Bill would allow the Minister to exclude categories of employers or workers from the duty to prepare a skills transfer plan, but the Act itself contains no equivalent exemption for the labour market test.

It was not always going to be this way. The 2022 draft allowed employers to exceed a quota where a foreign national filled a position requiring critical skills. That carve-out has gone: the Bill now permits it only by ministerial exemption.

The labour market test therefore reaches the holder of a critical skills visa under section 19(4) of the Immigration Act – the very category the state created for skills it has already decided are in short supply. Home Affairs will already have assessed the applicant’s skills. The Bill then asks the employer to justify itthe appointment all over again, to a different department, against a stricter standard.

There is an inherent tension in this approach. A person to whom the state has granted the right to work in South Africa should be able to exercise it. If the visa is valid, that should be enough; a second, duplicate filter adds cost and delay without adding protection. It sits uneasily with the Bill’s own stated aim of promoting the availability of critical skills.

The inconsistency extends well beyond the Bill. Over the past two years, Home Affairs has worked steadily to make it easier for scarce skills to enter South Africa. Under the points-based system in force since October 2024, an applicant whose occupation is on the Critical Skills List automatically meets the threshold for a critical skills work visa. The Trusted Employer Scheme offers accredited employers faster, simpler processing, and its second phase, opened in July, was expressly widened to businesses establishing regional or global headquarters here.

These reforms send investors a clear message: bring your capital, and bring the people you need to deploy it. The Bill sends the opposite one. One arm of government is holding the door open while another places a hurdle just inside it. Investors notice when two departments do not agree, and they price the uncertainty accordingly.

The truth is that the investors themselves will be fine. Capital is mobile, and it goes where it is welcome. The people who will feel the consequences are South African workers.

The latest Quarterly Labour Force Survey puts the official unemployment rate at 33.6%. On the broader measure, which counts people who want work but have stopped looking, it is 43.8%. More than four in ten South Africans who want a job cannot find one.

Against that backdrop, anything that discourages investment is not merely an inconvenience to business. Work seekers pay the price. The senior and specialist appointments caught by the test are often the ones an investment depends on, along with the local jobs that come from it. Make those appointments harder, and the jobs that follow become harder to create. A Bill intended to protect South African workers should not result in fewer jobs being created for them.

The labour market test is the most pressing problem, but not the only one.

**Quotas:**The Minister may set quotas for foreign nationals in any sector, occupational category or region. The Minister must consider certain factors, but there is no objective methodology, and no limit on how often or how far quotas may change. A quota notice must give employers a period to comply, but nothing protects foreign nationals already lawfully employed when it takes effect, so an employer that was compliant yesterday could be over quota tomorrow.

**Dismissals:**The Bill is silent on whether reducing headcount to meet a quota is a fair reason for dismissal under the Labour Relations Act. This creates a real tension: section 210 of the Labour Relations Act provides that, if any conflict relating to the matters dealt with in that Act arises between it and any other law (other than the Constitution or an Act expressly amending it), the Labour Relations Act prevails. The Labour Relations Act requires a fair reason for every dismissal, and it is far from clear that complying with a quota would qualify, leaving itemployers caught between the two statutes.

**Penalties:** The Bill also introduces escalating fines, up to the greater of R1-million or 10% of the previous year’s turnover for repeat contraventions, without expressly distinguishing between deliberate wrongdoing and technical non-compliance. Each of these deserves careful scrutiny before the Bill becomes law.

None of this requires the Bill to be abandoned. Its aims can be achieved without these unintended consequences, and the amendments needed are targeted.:

- A valid visa or permit should be treated as satisfying the Act.
- The critical skills carve-out should be restored and extended to the labour market test, with a straightforward exemption route for senior and intra-group appointments.
- Where a test is still thought necessary, it should ask whether an appointment is reasonably justified, not whether anyone else in the country could conceivably fill it.

The window to make this case is short. Businesses that rely on international skills should make their own submissions to the Portfolio Committee on Employment and Labour by 6 November 2026 at 16h00, by email to [employmentservicesbill@parliament.gov.za](mailto:employmentservicesbill@parliament.gov.za).

South Africa can protect its workers and still welcome the skills that create work for them. The Bill should be amended so that it does both. **DM**