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South Africa: Illegals Have Labour Rights of Citizens
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Business Day (Johannesburg)
7 April 2008
Posted to the web 7 April 2008
Ernest Mabuza
Johannesburg
SOUTH African employers have the same duty of care to illegal foreign employees as they do to South African citizens, according to a precedent-setting Labour Court judgment, which ruled that illegal immigrants have the same labour rights as other workers.
The Johannesburg Labour Court ruled last week that an Argentinian dismissed by Discovery Health when his work permit expired had the same labour rights as a South African citizen.
Herman Lanzetta was employed by Discovery while he had a work permit. While it expired, the company dismissed him because the Immigration Act prohibits the employment of an illegal immigrant.
However, Judge Andre van Niekerk ruled that Lanzetta was still an employee for the purposes of the Labour Relations Act.
The judgment means all employment contracts are valid, irrespective of whether an employee is an illegal immigrant. It means employers cannot abuse foreigners, whether or not they are in SA legally.
"It will send a signal to opportunists who abuse foreigners," Bishop Paul Verryn, of the Methodist Church in Johannesburg, said yesterday.
Verryn said refugees housed in his church were frequently engaged to work under verbal agreements. However, at the end of their working week, they were either paid a lower amount than agreed on, not paid at all, or turned over to the police by their employers.
The court's action follows a change of heart last month by the Commission for Conciliation, Mediation and Arbitration (CCMA), which had previously said it would not consider cases involving the workplace rights of foreign nationals without proper documentation.
The CCMA said it accepted opinion from senior counsel who said that by criminalising the conduct of an employer who employed an illegal foreigner, the law did not render the contract of employment between the parties void.
Wessel Badenhorst, of Leppan Beech attorneys, said the judgment was in line with the constitution, which stated that everyone had a right to fair labour practices. " This judgment protects every employee, especially where work permits expire. It is a ground-breaking judgment, especially for those employers who employ foreign nationals who require work permits," Badenhorst said.
The judgment will also help undocumented immigrants who work on farms in Limpopo and Mpumalanga. Officials estimate there are between 500000 and 1-million illegal immigrants in SA. The country has deported more than 1-million illegal foreigners since 1990, most of them to Zimbabwe and Mozambique.
Watchdog Human Rights Watch, in a report last year on unprotected migrants in SA, said despite the decline in agricultural employment, there appeared to have been an increase in the employment of foreign agricultural workers since 1990.
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The study, Keep your Heads Down: Unprotected Migrants in SA, found that documented and undocumented migrants from Zimbabwe and Mozambique were vulnerable to human rights violations .
"Their right to fair labour practices as protected under the South African constitution is regularly infringed through failure of relevant actors to comply with immigration and employment laws and also deficiencies in these laws," the report said.
The report said the immigration law did not permit undocumented workers awaiting deportation to collect their unpaid wages and personal belongings.
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