Do illegal workers have rights?

In light of the recent xenophobic violence which broke out across various regions in South Africa, the recent case of Discovery Health and Commission for Conciliation, Mediation and Arbitration (CCMA), and German Lanzetta has important 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.

In light of the recent xenophobic violence which broke out across various regions in South Africa, the recent case of Discovery Health and Commission for Conciliation, Mediation and Arbitration (CCMA), and German Lanzetta has important 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 13 of 2002, (the Immigration Act) provides that no person shall employ -

l an illegal foreigner;

l a foreigner whose status does not authorise him or her to be employed by such person; or

l a foreigner on terms, conditions or in a capacity different from those contemplated in such foreigner's status.

The legal effect of the above is that no employer in South Africa may employ any person to work for such employer, unless that person is either a South African citizen (in which case he, or she has the right to work) or that person has a work permit allowing him, or her to work in the country.

In the normal course, an employer will ensure that any employee who is not a South African citizen has a valid work permit entitling him to work in the country before offering the employee employment.

However, some employers either do not satisfy themselves that the employee is legally entitled to work in South Africa, or deliberately flout this restriction.

It is often in the latter case that persons working in contravention of section 38 of the Immigration Act are taken advantage of by unscrupulous employers who fail to provide these employees with the minimum entitlements to which employees are entitled in terms of employment legislation.

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."

Before the Lanzetta judgment, the definition of employee as set out above was interpreted to mean only a person who was employed under a legal contract of employment, which excluded illegal foreigners.

What the Lanzetta judgment says is 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.

An illegal foreigner can also now approach the CCMA or the Labour Courts for relief and for enforcement of his or her rights as an employee.

The moral, ethical and societal consequences of this judgment may be far-reaching. Some of the benefits may include reduced levels of xenophobia, arising from a perceived lesser threat to South African citizens of illegal immigrants taking jobs away from South Africans, since illegal immigrants may now invoke a 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.

- Sandile July is a director at Werksmans Attorneys

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