Does South African Law Protect Foreign and Uncontracted Workers?
There are various pieces of legislation that provide for the protection of foreign migrant workers in South Africa. According to Article 23 of the Universal Declaration of Human Rights, everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment.
Even though the right to work is not expressed directly in the Constitution of the Republic of South Africa , it is viewed as a core component of the right to life and the right to human dignity. Undocumented foreign migrant workers have rights and recourse under South African labour law and therefore employers may not mistreat them.
The matter of Discovery Health Limited v CCMA 2008 was heard by the Labour Court of South Africa and dealt with the issue of whether a foreign national employed without a work permit qualifies as an “employee” as defined in the Labour Relations Act. Mr. Lanzetta, an immigrant who obtained a work permit to work for MPCS and then later joined Discovery Health, contended that employment relationships are valid even for employees without a valid work permit. Discovery Health argued that the employment contract was invalid as it conflicted with S38 of the Immigration Act which prohibits an employer from employing someone who is not in South Africa legally.
The court held that the employment contract was valid and that Lanzetta was an employee as defined by S213 of the LRA, with the right to refer the matter to the CCMA. The court noted that the employer’s criminal liability under S38(1) of the Immigration Act is meant to prevent the exploitation of foreign national employees, which would be inconsistent with their Constitutional rights to a fair labour practice. Therefore, the court concluded that Lanzetta was an employee entitled to the protections afforded by labour law, and that the CCMA had jurisdiction over the dispute.
Using the precedent set in South African labour law, it can be concluded that foreign workers whose work permits have expired are still entitled to employment protection.
Workers may be classed as formal and contracted, whereas informal employees refer to those that are part-time, members of the temporary employment services or those who have limited duration contracts.
There is various legislation that governs employment law, namely the Compensation for Occupational Injuries and Diseases Act 130 of 1993; the Labour Relations Act 66 of 1995; the Employment Equity Act 55 of 1998 and the Basic Conditions of Employment Act 75 of 1997. All of these Acts are aligned with the goals and purpose of the Constitution of the Republic of South Africa, 1996.
The aim of this legislation is to eradicate unfair labour practices. However, it does not necessarily mean that just because there is a substantial amount of legislation that it is effective. Uncontracted and part time workers are offered less protection than those employed on a permanent basis, meaning that they are susceptible to illegal and unfair labour practices. The Labour Relations Act, the Basic Conditions of Employment Act and the Employment Equity Act have all had legislative amendments within the last decade, showing us that there have been constant gaps in our legal framework that need to be identified and rectified.
Informal workers take on various roles, such as construction workers, security guards, janitorial roles and restaurant staff. Formal workers also exist in various roles, such as teachers, attorneys and engineers. Whereas both types of workers may have contracts, it is generally presumed that a formal worker would have a contract that is less fluid than that of an informal worker.
The existing legislation provides for a broad legal framework to help protect employees from mistreatment but has at times shown to fail. Additionally, the process for dismissal with regards to both formal and informal workers is a topic of much scrutiny in our current legal system. A clear example of this is the case of Avril Elizabeth Home for the Mentally Handicapped v CCMA and Others, which was also heard by the Labour Court of South Africa.
In this case, the nature and extent of the fair procedure requirements established by the Labour Relations Act and the Code of Good Practice was scrutinised. These forms of legislation are supported by international labour standards. The International Labour Organisation Convention 158 mandates procedures to promote compliance with the obligation to ensure that dismissals are based on valid reasons and are not discriminatory. South Africa has not ratified Convention 158 and thus is not obliged to implement its terms in domestic legislation. However, the Convention is an important and influential point of reference with regards to the interpretation and application of the Labour Relations Act. This case, amongst others, has highlighted the need for clear and concise legislation regarding employment law.
The content does not constitute legal advice, are not intended to be a substitute for legal advice and should not be relied upon as such. Kindly contact us on info@cklaw.co.za or 021 556 9864 to speak to one of our attorneys.
Author:
Liam Naidoo
Liam Naidoo joined CK Attorneys as a Candidate Attorney in 2024.
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