Labour Inspections And Foreign Employees

The Department of Employment and Labour conducts workplace inspections by sending labour inspectors to determine an employer’s compliance with current labour legislation. The most crucial legislation is found in the following Acts: 

• Basic Conditions of Employment Act (BCEA), 75 of 1997 (in conjunction with Sectoral Determinations); 

• Compensation for Occupational Injury and Disease Act, 130 of 1993; 

• Employment Equity Act, 55 of 1998; 

• Occupational Health and Safety Act, 85 of 1993; and 

• Unemployment Insurance Act, 30 of 1996. 

• Employment Services Act, 4 of 2014  

In addition to advising employers and employees of their rights and responsibilities in terms of employment legislation and investigating complaints, labour inspectors are vested with broad authority, including being authorised to request employer or employee information, such as proof of registration and payment to the Workman’s Compensation Fund and the Unemployment Insurance Fund, employment contracts and employees’ personnel files (which must include a copy of a valid work permit for any foreign employees), and being able to make copies of and remove such documentation, among other powers. 

If the inspectors discover an issue of non-compliance, they will likely perform a more in-depth inspection and may interview employees. When non-compliance is detected, labour inspectors may first enforce the employer’s compliance by securing a written undertaking to comply with a particular provision. An inspector may, alternatively, issue immediate compliance orders, which set out what employers must do to conform and can include fines or even the prospect of imprisonment for an employer for their non-compliance. An example is that an employer can be fined from R7,000 to R50,000 per illegal foreign worker or be sentenced to up to 12 months or more in prison, depending on the seriousness of the offence. 

Although a labour inspector is authorised to enter workplace premises without notice, at any reasonable time, or to serve a warrant in order to monitor and enforce compliance with labour legislation, employers have the right (and are strongly advised) to verify an inspector’s identity. One can do this by requesting the inspector’s certificate, confirming their position as a labour inspector with the Department of Employment and Labour and setting out their functions. Should an inspector lack this identification, they must not be allowed access. 

However, a labour inspector may not enter a residential premises without verbal permission or written authorisation.