POLICY ON THE EMPLOYMENT OF FOREIGN NATIONALS AND THE
SECONDMENT OR EXCHANGE OF PUBLIC SERVICE ACT - EMPLOYEES AND FOREIGN NATIONALS
1. The recruitment
and retention of scarce skills in the Public Service is a key consideration in
Government’s programme to deliver public services efficiently and on an
affordable basis to the people of South Africa. Planning in the aforementioned
regard has reached the stage where a variety of strategies and initiatives
(such as the Human Resource Development Strategy for the Public Service and the
National Skills Development Strategy driven by the Department of Labour) are
being concretised for implementation on an integrated basis in the Public
Service.
2. It is
well known that during the past few years the Public Service has experienced a
serious loss or shortage of skilled staff in a number of key occupations.
Whilst the mechanisms intended for developing the necessary skills capacity
within South Africa have not yet been fully implemented, alternative measures
need to be taken in the interim to meet the human resource needs in the Public
Service. One such alternative is to recruit foreigners from abroad and to
deploy South African Public Service employees on a secondment or exchange basis
to other countries to acquire the skills needed by the Public Service.
3. The ability of the
Public Service to deliver effective services to the people of the country
depends on its capacity in terms of the competence and adequacy of its human
resource base. Due to a variety of reasons and circumstances that inter alia
relate to the legacy of the apartheid system, globalisation, increased competition
for scarce skills and the impact of HIV and AIDS, the Public Service is now
faced with the challenge to manage serious staff and skills shortages in a
number of occupations in the Public Service.
4. In
order to address these circumstances, Cabinet adopted during 2002 a Human
Resource Development Strategy for the Public Service that defines a number of
strategies to be rolled out until 2006.
This strategy also includes a Scarce Skills Development Strategy that
calls for a number of activities to be undertaken in regard to the recruitment
and provisioning of scarce skills in the Public Service.
5. Studies
conducted on strategic occupations in the Public Service during the past two years have confirmed that
severe recruitment and retention problems exist in the following occupations:
5.1 Physical,
mathematical and engineering science professionals (e g chemists,
statisticians, engineers, etc)
5.2 Health and nursing professionals
5.3 Social
science and related professionals (e g psychologists, interpreters, social
workers, etc)
5.4 Life science professionals (e g
agricultural scientists, biologists, pathologists, etc)
5.5 Managers and related support personnel
5.6 Veterinary and related professionals
5.7 Legal professionals
5.8 Economists and related professionals
5.9 Ship
and aircraft professionals
5.10 Physical
and engineering science technicians
5.11 Life science technicians
5.12 IT professionals
Note:
The occupations listed above are defined in terms of the Public Service’s
occupational classification system.
6.
The Department of Public Service and Administration (DPSA),
being a stakeholder in improving human resource management throughout the
Public Service, developed the above – mentioned policy to establish a uniform
approach and practice according to which Public Service departments could -
6.1 recruit and utilize foreigners to
address staff and skills shortages in their areas of operation, and
6.2 through secondment and exchange programmes
with other countries, enhance/develop
the capacity of their staff in regard to scarce skills and competencies.
DESIGN METHODOLOGY
7. The development of the policy included
research that entailed the following:
7.1
The engagement of key stakeholders, namely the Governance and
Administration FOSAD Cluster Committee, the departments of Home Affairs,
Foreign Affairs, Health and Labour as well as the PSETA, SAMDI and SAQA.
7.2
A high-level survey amongst all departments to obtain information and
views concerning the critical occupations in the Public Service, the trends
regarding staff turnover in critical occupations and the initiatives that
departments have been or are taking to address skills shortfalls.
7.3
A desktop comparative study of what other countries are doing in regard
to the recruitment of foreigners and the exchange of their employees. (This study included the UK, Canada,
Australia and Singapore.)
7.4
The approaches followed by ESKOM, SASOL and Telkom.
7. The final draft
of the policy was consulted with selected departments.
FEATURES OF THE
POLICY
9. The policy is based on the employment
framework and provisions provided for in the Immigration Act, 2002, the Public
Service Act, 1994, the Public Service Regulations, 2001 and other measures
reflected in collective agreements and determinations made by the Minister. It
thus reflects to a large extent on existing measures and provisions. Other
sectors in the Public Service (The SAPS, SANDF, educator, etc) will need to
apply the policy in accordance with their respective laws.
10. Throughout the policy, due emphasis is
placed on the purpose, efficiency and cost – effectiveness of
employing/utilising foreign nationals and the deployment of Public Service Act
– employees on a secondment or exchange basis. Emphasis is also placed on the
concepts of “critical occupations” and “critical skills” as the basis for the
application/focus of the policy as well as the need to comply with the
Immigration Act, 2002.
11. The policy covers three distinct
dimensions, namely -
11.1
the employment of foreign nationals (as bona fide employees) to fill
vacancies in critical occupations;
11.2 the secondment of Public Service Act -
employees to, or their exchange with other countries, to address capacity needs
in respect of both critical occupations and critical skills; and
11.3 the
utilisation of foreign nationals on a secondment or exchange basis to address
capacity needs in the Public Service in respect of both critical occupations
and critical skills.
12.
As regards the aforementioned dimensions, the following approaches have
been adopted:
12.1
Employment of foreign nationals
(a)
Foreign nationals must be employed in critical occupations as
determined by departments on the basis set out in the policy.
(b)
The employment of RSA citizens and permanent residents must receive
preference and the recruitment of foreign nationals can only be considered as a
last resort.
(c)
Employment must be for fixed – term periods and in a full – time
capacity. The contracts of employment must provide for the transfer of skills
to RSA – employees.
(d)
The standard recruitment processes and approaches are to be applied,
except that the Department of Foreign Affairs must be approached to facilitate
the process if recruitment takes place in terms of treaties and bi – lateral
agreements.
12.2 Secondment or exchange of Public
Service Act - employees
(a) The employee must (as provided for in
section 15(3) and (4) of the Public Service Act, 1994) give his or her consent
to be deployed or exchanged.
(b)
The recipient (foreign) organisation should bear the total cost
relating to the employment of the employee during his or her term of secondment
or exchange (e g the costs in respect of remuneration, service benefits,
compensation for accommodation and traveling, daily allowances, etc), unless
otherwise agreed between the department and the organisation.
(c)
Departments may bind an employee who is seconded or exchanged
contractually to continue employment in the Public Service after expiry of his
or her deployment or exchange.
(d)
An employee who is seconded or exchanged is compensated for the travel
and accommodation expenses involved in the deployment or exchange exercise. As
indicated in subparagraph (b) above, such costs are to be funded either by the
recipient (foreign) organisation or on the basis agreed to between the
department and the organisation.
12.3 Utilisation of foreign nationals in the
Public Service on a secondment or exchange basis
(a) Foreign nationals must be utilised in
critical occupations and critical skills situations as determined by
departments on the basis set out in the policy.
(b)
The recipient (RSA) department should bear the total cost relating to
the foreign national’s secondment or exchange (e g the costs in respect of
remuneration, service benefits, compensation for accommodation and travelling,
etc) as incurred by his or her employing organisation, unless otherwise agreed
between the department and the other organisation.
(c) The payment of a special deployment
allowance (of up to 30% of the commencing salary notch or package attached to
the level of utilization) to a foreign national during his or her term of
utilisation is introduced. The proposed allowance is meant to provide an
incentive where necessary, for foreign nationals to avail themselves for
utilisation in the Public Service. It is not a standard benefit payable to all
foreign nationals, as departments will have flexibility to pay the allowance
according to prevailing needs and circumstances.