This Act has now been gazetted and will come into operation on a date to be proclaimed in the Gazette, which could well be May Day 2014. Only some extracts from the Act are provided hereunder. They do not include those dealing with the establishment of the Employment Services Board, Productivity South Africa and Supported Employment Enterprises and the enforcement provisions.
The intention of the Act is to provide for:
- public employment services;
- the establishment of schemes to promote the employment of young work seekers and other vulnerable persons;
- schemes to assist employees in distressed companies to retain employment;
- the facilitation of the employment of foreign nationals in a manner that is consistent with the objects of this Act and the Immigration Act, 2002;
- the registration and regulation of private employment agencies;
- the establishment of the Employment Services Board;
- the establishment of Productivity South Africa;
- the establishment of Supported Employment Enterprises;
- transitional provisions; and
- matters connected therewith.
INTERPRETATION, PURPOSES AND ADMINISTRATION
In this Act, unless the context otherwise indicates-
“Basic Conditions of Employment Act” means the Basic Conditions of Employment Act, 1997 (Act No. 75 of 1997);
“Board” means the Employment Services Board established in terms of section 20;
“Department” means the Department of Labour;
“Director-General” means the Director-General of the Department;
“employee” bears the same meaning as defined in section 1 of the Basic Conditions of Employment Act;
“employment services” includes the provision of the following services:
(a) Advising or counselling of workers on career choices, either by the provision of information or other approaches;
(b) assessment of work seekers for-
(i) entry or re-entry into the labour market; or
(ii) education and training;
(c) referring work seekers-
(i) to employers to apply for vacancies; or
(ii) to training providers for education and training;
(d) assisting employers-
(i) by providing recruitment and placement services;
(ii) by advising employers on the availability of work seekers with skills that match their needs;
(e) performing the functions of temporary employment services; and
(f) any other prescribed employment service;
“foreign national” means an individual who is not a South African citizen or does not have a permanent residence permit issued in terms of the Immigration Act;
“Immigration Act” means the Immigration Act, 2002 (Act No. 13 of 2002);
“Labour Relations Act” means the Labour Relations Act, 1995 (Act No. 66 of 1995);
“Minister” means the Minister of Labour;
“NEDLAC” means the National Economic, Development and Labour Council established by section 2 of the National Economic, Development and Labour Council Act, 1994 (Act No. 35 of 1994);
“persons with disabilities” includes persons who have long-term physical, mental, intellectual or sensory impairment which, in interaction with various barriers, may hinder their full and effective participation in society on an equal basis with others;
“prescribe” means prescribed by the Minister by regulation, and “prescribed” has a corresponding meaning;
“private employment agency” means any person who provides employment services for gain;
“public employment services” means the public employment services contemplated in section 5;
“Public Finance Management Act” means the Public Finance Management Act, 1999 (Act No. 1 of 1999);
“registrar” means the official designated as a registrar in terms of section 13;
“Skills Development Act” means the Skills Development Act, 1998 (Act No. 97 of 1998);
“Supported Employment Enterprises” means the national government component established in terms of section 42;
“temporary employment services” bears the same meaning as defined in section 198 of the Labour Relations Act;
“this Act” includes regulations;
“Unemployment Insurance Act” means the Unemployment Insurance Act, 2001 (Act No. 63 of 2001);
“work opportunity” means a vacancy or opportunity for employment or work experience, self-employment or community service;
“work scheme” means any programme aimed at assisting people to find or remain in employment or to set themselves up in self-employment; and
“work seeker” means any person who is looking for work.
2 Purpose of Act
(1) The purpose of this Act is to-
(a) promote employment;
(b) improve access to the labour market for work seekers;
(c) provide opportunities for new entrants to the labour market to gain work experience;
(d) improve the employment prospects of work seekers, in particular vulnerable work seekers;
(e) improve the employment and re-employment prospects of employees facing retrenchments;
(f) facilitate access to education and training for work seekers, in particular vulnerable work seekers;
(g) promote employment, growth and workplace productivity; and
(h) facilitate the employment of foreign nationals in the South African economy, where their contribution is needed in a manner-
(i) that gives effect to the right to fair labour practices contemplated in section 23 of the Constitution;
(ii) that does not impact adversely on existing labour standards or the rights and expectations of South African workers; and
(iii) that promotes the training of South African citizens and permanent residents.
(2) The purpose is to be achieved by-
(a) providing comprehensive and integrated free public employment services;
(b) coordinating the activities of public sector agencies whose activities impact on the provision of employment services;
(c) encouraging partnerships, including in the provision of employment services, to promote employment;
(d) establishing schemes and other measures to promote employment; and
(e) providing a regulatory framework for the operation of private employment agencies.
Any person applying this Act must interpret its provisions to give effect to-
(a) its purpose;
(b) the Constitution; and
(c) South Africa’s obligations in terms of any relevant international labour standards and treaties.
. . . .
5 Public employment services
(1) The Department must provide the following public employment services free of charge to members of the public in a manner that is open and accessible:
(a) Matching work seekers with available work opportunities;
(b) registering work seekers;
(c) registering job vacancies and other work opportunities;
(d) facilitating the placing of work seekers with employers or in other work opportunities;
(e) advising work seekers on access to education and training;
(f) advising workers on access to social security benefits;
(g) providing specialised services to assist vulnerable work seekers;
(h) facilitating the exchange of information among labour market participants, including employers, workers and work seekers, private employment agencies, Sector Education and Training Authorities and training providers;
(i) facilitating the employment of foreign nationals in a manner that is consistent with the object of this Act and the Immigration Act; and
(j) generally, performing any other function in terms of employment law or prescribed in terms of this Act.
(2) The Department may also provide the following services to facilitate the matching of work seekers to work opportunities:
(a) Vocational and career counselling;
(b) assessment of work seekers to determine suitability; and
(c) any other related life skills to secure employment or other forms of work.
6 Promotion of employment of youth and other vulnerable work seekers
(1) The Minister may, after consulting the Board, establish work schemes for the purpose of enabling youth and other vulnerable work seekers to enter employment, remain in employment or be placed in opportunities for self-employment.
(2) The employment of any person in terms of a scheme contemplated in subsection (1) is subject to any minimum terms and conditions established in accordance with the Basic Conditions of Employment Act or any applicable collective agreement.
(3) The Minister may prescribe-
(a) measures that may be provided for in terms of a scheme contemplated in subsection (1); and
(b) the period for which a youth or any other vulnerable work seeker may be employed in terms of such scheme and may determine the remuneration of employees or other payments for the purposes of subsection (1).
7 Job retention
(1) The Minister may, after consulting the Board, establish schemes to minimise the retrenchment of employees.
(2) Without limiting subsection (1), a scheme may provide for turn-around strategies, lay-offs, re-training or alternative employment opportunities.
(3) For the purposes of this section, ”economic distress” means financial or operational difficulties which may result in an employer contemplating the dismissal of employees based on its operational requirements.
8 Employment of foreign nationals
(1) 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.
(2) The Minister may, after consulting the Board, make regulations to facilitate the employment of foreign nationals, which regulations may include the following measures:
(a) The employers must satisfy themselves that there are no other persons in the Republic with suitable skills to fill a vacancy, before recruiting a foreign national;
(b) the employers may make use of public employment services or private employment agencies to assist the employers to recruit a suitable employee who is a South African citizen or permanent resident; and
(c) preparation of a skills transfer plan by employers in respect of any position in which a foreign national is employed.
(3) A regulation made in terms of this section may-
(a) include any other requirement necessary to implement the provisions of this section which are consistent with the Immigration Act; and
(b) differentiate between different categories of visas issued in terms of the Immigration Act and different categories of work.
(4) An employee who is employed without a valid work permit is entitled to enforce any claim that the employee may have in terms of any statute or employment relationship against his or her employer or any person who is liable in terms of the law.
9 Prohibited acts in respect of foreign nationals
An employer may not require or permit a foreign national-
(a) to perform any work which such foreign national is not authorised to perform in terms of his or her work permit; or
(b) to engage in work contrary to the terms of their work permit.
10 Reporting on vacancies and filling of positions
(1) The Minister may, after consulting the Board, make regulations requiring employers to notify the Department of-
(a) any vacancy or new position in their establishment in a manner and within such period as the Minister may determine;
(b) the employment of any work seeker referred by a labour centre; and
(c) any matter necessary to promote the provision of efficient matching services.
(2) A regulation made in terms of subsection (1) may differentiate between different categories of work and different categories of employers.
11 Employment information
The Department may develop and operate an employment information system for monitoring, evaluating, researching and analysing trends, which may include, but are not limited to, the following information:
(a) The names, qualifications and previous occupations of work seekers;
(b) vacancies in the labour market;
(c) training opportunities that are available;
(d) specialised skills and qualifications possessed by work seekers registered on the public employment services system; or
(e) details of the employer.
12 Financing of public employment services
(1) The provision of public employment services in terms of this Act must be financed from the money defrayed from the budget vote of the Department for this purpose and may, in addition, be financed from
(a) money allocated from the Unemployment Insurance Fund in accordance with the provisions of the Unemployment Insurance Act;
(b) money allocated from the Compensation Fund in accordance with the provisions of the Compensation For Occupational Injuries and Diseases Act, 1993 (Act No. 130 of 1993);
(c) money generated from the registration of private employment agencies, with the concurrence of the Minister of Finance; and
(d) grants and donations made for this purpose to the Department.
(2) The monies received by the Department for public employment services may only be used in the prescribed manner and to fund-
(a) the administration and performance of its functions in terms of this Act;
(b) schemes for retrenched workers, work seekers, in particular vulnerable work seekers;
(c) rehabilitation and promotion of re-entry into employment for people who are disabled as a result of being injured on duty or contracting an occupational disease;
(d) subsidies to organisations providing work opportunities for vulnerable work seekers;
(e) private employment agencies for specific or specialised projects in respect of vulnerable workers; or
(f) any other project, that the Minister may decide upon, that promotes the provision of public employment services or that is consistent with the objects of this Act.
PRIVATE EMPLOYMENT AGENCIES
13 Registration of private employment agencies
(1) The Minister may, after consulting the Board, prescribe criteria for the registration of private employment agencies.
(2) The criteria for registering private employment agencies must differentiate between private employment agencies-
(a) that are registered as temporary employment services; or
(b) that only seek to perform other employment services as contemplated in this Act.
(3) The Minister must designate an official of the Department as the registrar of private employment agencies.
(4) Any person wishing to provide employment services must apply to the registrar in the prescribed form and manner in order to register as a private employment agency.
(5) The registrar must, within 60 days of the application, issue a private employment agency with-
(a) a certificate of registration, if the application is successful or a temporary certificate of registration as prescribed; or
(b) a letter containing reasons, notifying the private employment agency that it has not been granted registration, in accordance with the Promotion of Administrative Justice Act, 2000 (Act No. 3 of 2000).
(6) The registration certificate of a private employment agency must specify whether or not the private employment agency is permitted to perform the functions of a temporary employment service.
(7) The registrar must maintain in electronic form a register of private employment agencies that have been registered in terms of this Act and must make suitable arrangements for the public to access the register.
(8) The private employment agency must display its certificate of registration in a conspicuous place at the premises from where it operates.
(9) A person may not operate a private employment agency except in accordance with the provisions of this Act and the terms of its registration.
14 Prohibited acts in respect of private employment agencies
A private employment agency may not-
(a) provide false employment services information;
(b) provide any employment service that it is not authorised to perform in terms of its certificate of registration;
(c) counterfeit, alter or transfer its registration certificate; or
(d) retain the original identity documents or original qualification certificates of work seekers.
15 Charging of fees by private employment agencies
(1) No person may charge a fee to any work seeker for providing employment services to that work seeker.
(2) Despite subsection (1), the Minister may, after consulting the Board, by notice in the Gazette permit private employment agencies to charge fees in terms of a specified fee to specified categories of employees or for the provision of specialised services.
(3) A notice in terms of subsection (2) may specify categories of employees by reference to the work performed or to the earnings of such employees.
(4) A private employment agency must not deduct any amount from the remuneration of an employee or require or permit an employee to pay any amount in respect of the placing of that employee with an employer.
(5) Any agreement between a private employment agency and a client in terms of which employees perform work for the client, must specify separately the remuneration that employees will receive and the fee that the client is paying to the private employment agency.
(6) A provision in any agreement concluded with an employee that is in breach of this section is invalid and of no force and effect.
(7) The Commission for Conciliation, Mediation and Arbitration established in terms of section 112 of the Labour Relations Act or a bargaining council having jurisdiction may conciliate and arbitrate any dispute concerning the application of this section.
16 Retention of information by private employment agencies
(1) A private employment agency must keep an electronic or manual register reflecting-
(a) the work seekers registered with them;
(b) work seekers that have been placed in employment; and
(c) particulars of the employer where the work seeker was placed.
(2) The records contemplated in subsection (1) must be retained for a minimum period of three years.
17 Confidentiality of information collected
(1) The processing of personal information of work seekers by a private employment agency must-
(a) be done in a manner that protects the information and ensures respect for the privacy of the work seeker; and
(b) be limited to matters related to the qualifications and professional experience of the work seeker concerned or any other relevant information.
(2) A private employment agency-
(a) may provide information to a prospective employer concerning a work seeker, in accordance with subsection (1);
(b) must, if requested by the Department, provide the necessary information to the Department, provided that this does not infringe any right of the individual concerned, any proprietary right or law regulating the disclosure of information; and
(c) may provide information to any other organ of state only if it is required to do so in terms of any other legislation or for the purposes of the administration of justice.
18 Cancellation of registration of private employment agency
(1) The registrar may cancel the registration of a private employment agency for failure to comply with the requirements of this Act or any regulations made in terms of this Act or any prescribed procedures.
(2) The registrar must, before withdrawing the registration of a private employment agency-
(a) notify the private employment agency in writing of his or her intention to cancel its registration and of the reasons for so doing;
(b) give the private employment agency 30 days, calculated from the date the notice is given in terms of paragraph (a), an opportunity to make representations on why its registration should not be cancelled;
(c) consider any representations received; and
(d) notify the agency of the decision.
(3) If the registration is withdrawn, the registrar must remove the name of such private employment agency from the register of private employment agencies.
19 Review of decision of registrar
(1) Any person aggrieved by the decision of the registrar not to grant or to cancel registration, may apply for a review in the Labour Court against that decision within 30 days of the date of the decision of the registrar.
(2) The Labour Court may, on good cause shown, extend the period within which a person may lodge the application for review.