The Labour Rights of Irregular Migrants in South Africa

Abstract

South Africa has long been dealing with the immigration of irregular migrant workers. There are strong indicators that irregular migrant workers are exploited, abused and subjected to working conditions that are less favourable than that of nationals of the country. With the implementation of the Immigration Act 13 of 2002, South Africa criminalised the appointment of an irregular migrant worker. The Immigration Act came under scrutiny in the Discovery Health v CCMA (2008) ILJ 1480 (LC) case and the judgement stated that irregular migrant workers now have rights under the Labour Relations Act, where they are seen as employees with valid employment contracts. The judgement makes it apparent that the Immigration Act?s goal is not to deviate from international norms already in place. Internationally, irregular migrant workers have various labour rights. Although these international standards are not ratified by South Africa, they still have a profound effect on our judicial system when determining case law. A comparative analysis is drawn between the legislative framework of the United States of America, Ireland and South Africa in order to obtain an international perspective. Regarding irregular migrant workers, the United States of America takes a dramatically opposing viewpoint to that of South Africa while Ireland?s legislation runs parallel to South Africa?s. In South Africa, contradicting legislative provisions have created misconceptions that employment contracts of irregular migrants are invalid. These workers are afraid and unaware that they have access to dispute resolution mechanisms, while employers are too happy to exploit them to achieve lower labour costs. Recommendations to remedy the situation include immigration policy reforms, legislative amendments, enforcement of existing legislation, and creating awareness of the status of irregular migrant workers.