For many, the struggle to find employment in the harsh unemployment environment of South Africa will see them looking further afield to find a position. On the flip side, some local and foreign company's may find it more convenient for their business to employ job seekers from another country. This makes for a healthy supply and demand when it comes to cross border employment.
"Depending on the type of industry it can often be profitable for employers to source employees outside of South Africa and this is usually due to two scenarios. On the one hand, importing labour may be cheaper for a business or they may need skill sets which are not readily available to employ in South Africa itself. What many businesses may not realise however is that South African employment laws apply to foreign nationals working in South Africa even if they are working illegally," says Peter Winn, MD for Manpower SA.
The two most important of these are the Labour Relations Act No. 66 of 1995 (LRA) - This governs disputes relating to unfair dismissal and unfair practices in employment; and the Basic Conditions of Employment Act No. 75 of 1997 (BCEA) which sets minimum terms and conditions for all employees. There may be exclusions such as unpaid volunteers working for a charity, but otherwise these terms and conditions apply to any contract of employment. What may circumvent these laws is if better terms have been agreed upon or are provided for in another law, or if a term has been excluded under the BCEAs variation or exemption provisions.
"In South Africa there may be specific sectors or industries with their own specific set of laws that are regulated separately through industry bargaining councils. These include unions or sectoral determinations - which the Minister of Labour has published, and apply to all employees that fall under these sectors. But for those seeking to work abroad it's important to remember that South African employment laws do not generally apply to them. They may apply however in instances where they are working temporarily on secondment, particularly if it's part of an employment contract," explains Winn.
For employees wanting to work in South Africa a work permit must be obtained unless they have a visitors permit with consent to work, an exchange permit, if they work on a part time basis or if they have consent to work on a retired person permit.
"A work permit allows foreign workers to work and reside in South Africa as well as apply to study.
However, if they have family members residing with them, the family members will require a residency permit. Work permits can take on various forms, such as General Work Permits, Intra-company Transfer Permits, Exceptional Skills Permits, Corporate Permits - allowing companies to employ a predetermined amount of foreigners in certain positions, and Quota Permits - which allows for the employment of a set amount of foreigners annually in specific professional skills shortage areas," explains Winn.
"It's important to remember that there will be other standard issues with foreign workers such as collective agreements, tax breakdowns as well as pension fund contributions, restraint of trade and minimum wages legalities to deal with. The best route to take is to speak to someone or an organisation with the knowledge and experience to best implement an employment contract with foreign nationals," concludes Winn.
