Undocumented migrants and the right to fair labour practices

Abstract

The mini-dissertation focuses on the constitutional right to fair labour practices in relation to undocumented migrants within the South African workplace. Section 23 of the Labour Relations Act 66 of 1995, as amended, gives expression to this right together with other employment laws of the Republic. The study undertakes a literary review of the domestic Immigration Act, Refugees Act and Labour Relations Act, being the primary legislation regulating the entry, presence and rights of foreigners within the Republic. Although undocumented migrants are recognised as employees for purposes of the Labour Relations Act, an employment relationship entered into in contravention of a statute is proscribed. Continuing such a relationship would attract criminal sanction and fines for the employer. The only aspect of the right to fair labour practices enjoyed by undocumented migrants is the right to procedural fairness when dismissed. This is probably a contributing factor to the very minimal data available on undocumented foreigners with the boarders of the Republic. They fear arrest detention and deportation, whilst their employers fear the consequences of contravening the law which may in certain circumstances include imprisonment. This study further examines domestic, regional and international norms from the perspective of the International Labour Organisation, United Nations, African Union and Southern African Development Community. These organisations advocate for the protection of the human rights of all migrants, including undocumented migrants in the workplace. A close scrutiny of states such as South Africa, Kenya, United States of America and the Netherlands shows that protection, if any, if only afforded to documented migrants. The only fate that awaits undocumented migrants is arrest, detention and deportation. It is for this reason that they obtain employment in informal sectors, often leaving them vulnerable to exploitation and abuse. Oftentimes they are susceptible to a violation of both their employment and human rights. In conclusion, this study provides recommendations that can be made to address the plight of undocumented migrants in the South African workplace.