As the world’s focus once again shifts to the west and its most recent and controversial presidential appointment, questions relating to border control, the influx of migrants and the corresponding effects on national workforces and employment conditions become heated points of discussion on a global spectrum.
South Africa has experienced migrant travel from all over the globe for a significant number of years. Therefore, workplace tension between South African nationals and immigrants or foreign nationals has on more than one occasion reared its ugly head.
The most recent manifestation of which was witnessed in the Johannesburg riots which took place in September 2019. South African Nationals expressed their distaste of African foreign-national-owned businesses or places of employment, by looting and vandalizing shops and other premises’.
Occurrences like the Johannesburg riots are deeply rooted in the concept of xenophobia and human rights and socio-economic issues. However, they do raise the lesser highlighted questions regarding the status of foreign nationals under South African employment law.
Do foreign nationals on a general level, enjoy protection under South African Employment Law?
Issue and Legal Framework
Migrant workers experience vulnerabilities in a number of ways once entering the South African labour market. Recent studies have shown that migrant workers are faced with possible discrimination in the workplace, limited access to formal employment and most specifically in relation to migrants from neighbouring African countries, poor working conditions and occupational health and safety risks.
Laws relating to migrant workers are generally covered by the Immigration Act 13 of 2002 which originally disallowed the employment of migrant workers or foreign nationals who were not in possession of a valid work permit, not residents or not citizens. It however, appears that migrants who fulfilled the criteria in respect of the aforementioned categories, enjoyed employment law protection to the same extent as that of a South African National.
Be that as it may, it cannot be ignored that a significant portion of South Africa’s migrant labour force or rather migrant job seekers are not in possession of valid work permits, residency permits and are not considered citizens. It further cannot be ignored that this is the specific portion of migrant workers who are at the potential risk of exploitation.
The position of “illegal” migrant workers was highlighted in the case of Discovery Health Limited v CCMA & Others (2008) ILJ 1480 (LC) where it was found that illegal migrant workers were to be recognized as employees with valid employment contracts under the Labour Relations Act 66 of 1995.
The outcome of the Discovery Health judgment was that illegal migrant workers now enjoy the protection afforded by the Labour Relations Act and other employment law statutes. They have further gained access to the CCMA and labour courts.
Although pioneering the way for the extension of employment rights to migrant workers in particularly vulnerable positions, the Discovery Health judgment did not function as a “fix-all” for the poor working conditions and underpaid positions that migrant workers are often forced to subject themselves to.
It appears that a lack of knowledge of the prevailing position has allowed for the misconception that illegal migrants do not enjoy employment law protection to prevail. This misconception does not only lie with the ill-informed migrant employee as many employers and small business owners appear unaware that even illegal migrant workers are afforded the same avenues for relief in respect of labour disputes, as that of South African nationals. A radical dissemination of information, therefore, appears to be the first step in possibly eradicating the current positions of misconception, exploitation and unrest in the workplace.