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TITLE: Utilization of Foreign NationalsPolicy Number / 0033
Effective Date / Date of APPROVAL
Revision Date / 2013
Approved / 9 June 2010
- INTRODUCTION - SCOPE OF THE POLICY:
1.1.This Policyforms part of a variety of interventions to address human resource andskills shortages in the WaterbergFETCollege.
1.2.The Policy focuses specifically on the utilization of foreign nationalsand seeks to establish a clear basis for the employment of adequatelycompetent foreign nationals to address, as an interim measure, thehuman resource and skills needs in respect of identified criticaloccupations and critical skills in the WaterbergFETCollege. The utilization offoreign nationals will take place with due regard to the right ofpreference of South African citizens and permanent residents toemployment opportunities that may exist in the WaterbergFETCollege.
- PURPOSE OF THE POLICY
2.1.To provide mandates and processes according to which the College can address their human resource and skills needs in respect of criticaloccupations and critical skills by utilizing foreign nationals on anemployment basis.
- DEFINITION OF TERMS
3.1.This Policy must be read in conjunction with the FET ACT, 16 OF 2006the Waterberg FET College Regulations and other applicable policyprescripts.
3.2.In this Policy, unless the context indicates otherwise:
3.2.1.“conditions of service” means any service benefit, remunerativeallowance or compensation paid or granted in accordance with theapplicable provisions in the WaterbergFETCollege to an employee over andabove the employee’s basic salary;
3.2.2.“critical occupations” means occupations or sub-categories within anoccupation:
3.2.2.1.in which there is a scarcity of qualified and experienced personscurrently or anticipated in the future, either because such skilledpersons are not available or they are available but do not meetthe applicable employment criteria;
3.2.2.2.for which persons require advanced knowledge in a specifiedsubject area or science or learning field and such knowledge isacquired by a prolonged course or study and/or specialized instruction;
3.2.2.3.where the inherent nature of the occupation requires consistentexercise of discretion and is predominantly intellectual in nature;and
3.2.2.4.in respect of which a department experiences a high degree ofdifficulty to recruit or retain the services of employees;
3.2.3.“critical skills” means the operational or generic abilities neededwithin existing occupations that are required; or the top up skillsrequired to fill a skills gap to enable employees to competently performthe roles/tasks associated with such occupations. Critical skills includetransversal skills (“hard” skills like project management skills or “soft”skills like conflict management or communication skills) and functionalskills associated with particular jobs or particular occupationalcategories; education, and or
3.2.4.“executive authority”, in relation to the Office of the WaterbergFETCollegemeans the Chairperson of the Council or the CEOresponsible for such portfolio;
3.2.5.“Immigration Act” means the Immigration Act, 2002 (Act 13 of 2002);
3.2.6.“Immigration Regulations” means the Immigration Regulations madeby the Minister of Home Affairs in terms of the Immigration Act;
3.2.7.“FETC COLLEGE Act, 16, of 2006 “the Act” Act, 1994 “WaterbergFETCollege Regulations” or “Regulations” means the College regulations, policies and procedures
3.2.8.“RSA” means the Republic of South Africa as contemplated in theConstitution;
3.2.9.“Treasury” means the Treasury as defined in section 1(1) of the PublicService Act, 1994;
- SCOPE OF APPLICATION AND INSTITUTIONAL ARRANGEMENTS
4.1.This Policy applies to foreign nationals who are utilised in criticaloccupations or in instances where a critical skills need exists.
- APPOINTMENT OF FOREIGN NATIONALS TO ADDRESS HUMANRESOURCE SHORTAGES IN CRITICAL OCCUPATIONS
5.1.PRINCIPLES
The following principles shall inform the employment of foreignnationals:
5.1.1.The employment of South African citizens and permanent residentsmust receive preference and the utilisation of foreign nationals through their appointment in WaterbergFETCollege departments must be effected as a last resort.
5.1.2.The availability of South African citizens and permanent residents for
5.1.3.The appointment of foreign nationals must be limited to criticaloccupations.
5.1.4.The employment in critical occupations must be monitored regularly bydepartments.
5.1.5.The recruitment of foreign nationals must take place with due regard tothe provisions and/or limitations in treaties, agreements or memorandaof understanding with other countries.
5.2.STATUTORY REQUIREMENTS TO BE COMPLIED WITH
5.2.1.No person shall be appointed permanently to a post unless she or he is a SouthAfrican citizen or permanent resident. Foreign nationals who are not inpossession of a permanent residence permit may therefore only beemployed temporarily.
5.2.2.The employment of foreign nationals in critical occupations shall at alltimes be subject to the South African laws regulating the entry offoreign nationals into the RSA, their residence and their employment,e.g. the Immigration Act, the Refugees Act, 1998 and the PublicService Act, 1994.
5.3.CRITERIA TO BE MET BEFORE APPOINTING FOREIGN NATIONALS
5.3.1.Foreign nationals may be considered for employment in criticaloccupations subject to the following criteria being met beforehand:
5.3.1.1.The RSA labour market must have been properly tested throughnational recruitment campaigns (as prescribed in regulation 16(5) of the Immigration Regulations) to recruit from within South Africa and thenegative outcomes properly recorded (as proof), before considering the appointment of a foreign national.
5.3.1.2.Employment must not be offered to foreign nationals where there is anadequate supply of suitable South African citizens or foreign nationalwho have permanent residence, for the vacant posts concerned.
5.3.1.3.Appointing a foreign national must not displace a South African citizenor permanent resident from her or his post.
5.3.1.4.Should foreign nationals be appointed and an adequate supply ofsuitably skilled South African citizens become available in future, theemployment of foreign nationals must be phased out in the criticaloccupations concerned in terms of the provisions of their employmentcontracts.
5.4.IDENTIFICATION OF CRITICAL OCCUPATIONS
5.4.1.The College may identify an occupation as a critical occupation basedon the following:
5.4.1.1.There is a proven high vacancy and/or staff turnover rate in therelevant occupation.
5.4.1.2.The demand for suitably qualified and experienced human resource outweighs the supply, i.e. there is a scarcity of qualified andexperienced persons currently or anticipated in future because suchskilled persons are not available or they are available but do not meetthe employment criteria.
5.4.1.3.Advanced knowledge that can only be acquired by a prolonged courseof study or specialized instruction is required.
5.4.1.4.The RSA labour market must have been tested through nationalrecruitment campaigns without success, i.e. vacancies must provedifficult to fill.
5.5.PROCESS TO BE FOLLOWED IN THE RECRUITMENT OF FOREIGN NATIONALS
5.5.1.JOB DESCRIPTION FOR POSITION TO BE FILLED
5.5.1.1.If a department considers the appointment of a foreign national in acritical occupation, the department must ensure that a job descriptionfor the position exists containing the following information:
5.5.1.1.1.The post level concerned
5.5.1.1.2.The job purpose
5.5.1.1.3.The main objectives of the post
5.5.1.1.4.The competency profile required from the post incumbent
5.5.1.1.5.Other requirements that should be satisfied by the postincumbent, e.g. registration with a professional council, statutorytest or qualification requirements.
5.5.2.METHODS OF RECRUITMENT
5.5.2.1.To comply with the requirement that the RSA labour market betested before the employment of foreign nationals can be considered, the College must at least apply the followingrecruitment methods within the RSA:
5.5.2.1.1.Advertisement in the national media
5.5.2.1.2.“Head hunting” of a South African citizen or permanentResidentor
5.5.2.1.3.the correct recruitment procedures are followed according to the Recruitment and selection Policy of the College.
5.5.3.CONDITIONS OF APPOINTMENT
5.5.3.1.The employment of foreign nationals must be on a fixed termcontract basis, the term of employment must not exceed theterm of the relevant work permit and the employmentrelationship must be on a full-time basis in funded vacant posts.
5.5.3.2.A foreign national must undertake to perform her or his tasksdiligently in the critical occupation to which she or he will beappointed and to transfer her or his skills (section 2(1)(j)(ii) of theImmigration Act 9 refers) to other employees.
5.5.3.3.All applicants applying for work permits must be provided with a letter of endorsement and certification in terms of section 19 ofthe Immigration Act by the employing department to endorse thejob offer and to certify their employability.
5.5.3.4.In terms of section 19 of the Immigration Act, departments areobliged to monitor the validity of the work permits of foreignnationals and commit themselves to notify the Department ofHome Affairs when a foreign national is no longer employed or isemployed in a different capacity or role.
5.5.3.5.It is a statutory requirement that all foreign nationals working inSouth Africa must maintain their legal residence status in thecountry at all times.
5.5.3.6.Prior to employment, the employing department must obtainproof of the educational qualifications of foreign nationals and, ifapplicable, have it evaluated by the South African Qualifications Authority for purposes of recognition in South Africa.
5.5.3.7.If registration with a professional council is a requirement for appointment in the relevant post, such registration must be obtained before the appointment of the foreign national.
5.5.3.8.Proof of experience required for appointment must be providedby the foreign national prior to appointment or within an agreedto period after assumption of duty.
5.5.3.9.Where appropriate, the employing department must clearly statethe health requirements for appointment in the relevant positionand obtain proof that the foreign national complies with theserequirements prior to assumption of duty.
5.5.3.10.It must be ensured that the foreign national is able tocommunicate effectively in performing the duties of the job in the critical occupation in one of the official languages of the RSA.
5.5.4.CONDITIONS OF SERVICE
5.5.4.1.Foreign nationals must be appointed on WaterbergFETCollege termsand conditions which at no time may be superior or inferior tothose offered to South African citizens or permanent residents.
5.5.4.2.The salary of a foreign national must be agreed on between thedepartment and the foreign national concerned before he or she arrives in South Africa to assume duty, which salary must be included in the contract of employment.
5.5.4.3.An employment contract must be entered into when appointing aforeign national.