Digital platforms and the labour migration policy

John Botha, HR expert and COO of Global Business Solutions, looks at the Employment Services Amendment Bill.

The Employment Services Amendment Bill (ESAB) will regulate matters that have a profound impact on three key areas that impact human resources and labour relations strategy and planning.

These three areas are:

  • Digital labour platforms, the nature of which could confer an employment relationship on the parties making use of these platforms,
  • The Employment Equity Act in terms of representation of foreign nationals, and
  • The skills sets required to run a sustainable and high-performance business.

Each of these areas is unpacked below.

Digital Labour Platforms (DLPs)

Before we analyse the dynamics in respect of DLP’s, it is important to consider the definition of “worker” that has been included in the ESAB: “Worker” means any person who works for another and who receives, or is entitled to receive, any payment for that work, whether in money or in kind.

“Digital labour platform” means an electronic entity that enables the provision of work or services by a person to any other person in the Republic.

Now, Section 50 of the ESAB provides that, “For the purposes of this Act, a digital labour platform is an employer and any person who provides work or services in the Republic to another person by means of a digital labour platform is a worker if— (a) the payment for, or terms and conditions of, such work or services are determined by digital labour platform; and (b) the digital labour platform remunerates the worker.”

In other words, if a DLP sets the terms of payment and work, and remunerates the worker, then the DLP is the employer and is responsible for compliance with all applicable labour legislation.

This has major implications for digital labour platforms such as rental (Airbnb, Booking.com), travel (trivago, TripAdvisor), food delivery (Uber Eats, Grub Hub, and Postmates), transportation (Uber, Bolt, Lyft), home services (Task Rabbit, Helpling) and education (Udemy, Coursera).

The International Labour Organisation (ILO) states that “the emergence of the gig or platform economy is one of the most important new transformations in the world of work. An important component of the platform economy is digital labour platforms which include both web-based platforms, where work is outsourced through an open call to a geographically dispersed crowd (“crowdwork”), and location-based applications (apps) which allocate work to individuals in a specific geographical area, typically to perform local, service-oriented tasks such as driving, running errands or cleaning houses.”

The reason for the ILO and now SA government wanting to regulate this work vests in the need to protect various human rights as well as to enable a fast-growing new model of engagement.

The Employment Equity Act (EEA)

The ESAB and the National Labour Migration Policy (NLMP), which are open for commentary, will have a material impact on workforce strategies and design.

The reason for this is that the Minister of Employment and Labour will be empowered to set quotas for the representation of foreign nationals after having taken scarce and critical skills into account and based on the South African national labour market goals, which include employment creation and skills development.

This could have serious consequences for businesses that have very high levels of representation of foreign nationals. The Commission for Employment Equity report (2021) records that foreign national representation across all occupational levels spans between 1.7 percent to 3.7 percent. This means that SA workplaces would have up to 500,000 foreign nationals subject to these revised regulations.

The impact on businesses, talent transfer, flight out of South Africa and employment models means that employers will be well advised to start taking decisions on how to move forward.

Skills sets

The World Economic Forum (WEF) has published the top 15 skills for 2025. These, read together with the specific scarce skills list published by the SA government recently, will require organisations to not only establish which of these skills sets are part of the foreign national workforce but also ensure that skills transfer plans are put in place if either the foreign nationals are not issued with visas and/or if they are issued with visas but on condition that a formal skills transfer plan is put in place.

The above developments will allow organisations that are innovative and forward-looking to reconsider their workforce strategies and plans in order to pursue the most sustainable and high-performance options.