Facts: *Steve* not his real name, is an illegal immigrant who is based in Atlantis Cape Town and his asylum expired in 2009. In the same year, he was employed by at a Chinese shop. He worked for seven years without a permit and he was seriously underpaid. He anonymously tipped the Department of Labour and then approached the CCMA in Darling Street for help.
Steve was told that the CCMA does not assist illegal immigrants.
Question: Can an illegal migrant worker approach the CCMA for help?
Answers to Steve’s questions:
Steve, for the umpteenth time, the CCMA represents all workers including the illegal migrants.
The first article was not exhaustive in dealing with all aspects of Steve’s predicament as there are many issues to be dealt with, for more details please contact me directly as we have to now move on to other issues.
At this point in time let me explain the:
The Tripartite relationship between the Employer-Employee-and-the-Law
So, in light of the current laws of the land, there are implications for employers and for persons who do not have a right to work in the Republic of South Africa, but do or have in fact performed services in South Africa for an employer.
The Immigration Act provides that no employer shall employ a foreigner whose status does not authorize him or her to be employed. The legal effect of the above is that no employer in South Africa may employ any person to work without a work permit allowing him, or her to work in the country.
Many employers do deliberately employ migrants for exploitation. This is how migrants end up working in contravention of section 38 of the Immigration Act. As a result they are often taken advantage of by unscrupulous employers who fail to provide these employees with the minimum entitlements to which employees are entitled in terms of the employment legislation.
Who is an employee?
For the purposes of employment legislation, an employee is defined in the Labour Relations Act as “any person, excluding an independent contractor, who works for another person or for the State and who receives, or is entitled to receive, any remuneration; and any other person who in any manner assists in carrying on or conducting the business of an employer.” The definition of an employee has been extended and now includes illegal foreigners.
This entails that even if a person works in South Africa in contravention of the Immigration Act, and is an illegal foreigner, he or she will nevertheless be considered to be an employee in terms of the definition of an employee, and will be able to seek the protection of employment legislation by approaching the CCMA or the Labour Courts for relief and for enforcement of his or her rights as an employee.
Xenophobic and societal implications:
The moral, ethical and societal consequence of this is far-reaching. Some of the benefits may include reduced levels of xenophobia. This will arise from a perceived lesser threat to South African citizens from illegal immigrants taking jobs away from South Africans.
This will be the case since illegal immigrants have civil liberties to invoke the right to the basic minimum conditions of employment to which all employees are entitled, thus making them less attractive to employers as an exploitable labour force.
Since Steve was working long hours, there is a need to address this and also deal with the prescribed working conditions in the same sentence?
We will deal with this in the next article.
For more information about MIWUSA and your rights as a migrant worker, Contact: AdvocateChadyaTapiwa Diamond a Miwusa legal specialist, former student leader, who read law the University of Kwa-Zulu Natal, on 27 (0)84 566 2756 or 27 (0)81 518 5880, Whatsapp or Email him at firstname.lastname@example.org,or twitter @mantronieqscie or like Tapiwa Diamond Chadya on facebook. He writes in his personal capacity.