Cape Times, 22 April 2008
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A recent Labour Court judgment ruled that undocumented migrants and refugees had the same labour rights as South African citizens if they were in a working relationship. While a definitive and positive step in recognising the rights of migrant workers, the ruling only reiterates laws that were already in place to protect workers' rights. The court's action followed a ruling by the Commission for Conciliation, Mediation and Arbitration (CCMA) last month criminalising the conduct of an employer for hiring illegal foreigners, but protecting the employment arrangement itself. The ruling applies to both written and oral contracts. "We see this as a social justice mandate," Nerine Kahn, the director of the CCMA, said. "The ruling will have a great impact in that before it was not quite clear whether illegal workers were covered or not by labour laws. "Now, with the labour ruling, it is quite clear they are also protected by law for fair labour practices," said Nandu Manumbete, a labour lawyer with the Nkuzi Development Association. Nkuzi is a non-profit organisation that provides support to marginalised rural communities in their rights and access to land. Manumbete said the majority of people working illegally and being abused were on farms, but migrants seldom come forward because they were afraid of being arrested and deported. "It makes it quite difficult to enforce the rights of illegal immigrant workers," he said. In 2006, Human Rights Watch conducted a study of employment conditions for foreign farmworkers, particularly Zimbabwean and Mozambican migrants. The study found migrants were especially vulnerable to exploitation, but also pointed out that South Africans were not exempt from abuse. The report did acknowledge significant improvements in legal protections. For the most part, the Constitution of the Republic of South Africa, the 2002 Immigration Act and the Sectoral Determination 13: Farm Workers Sector, provide an adequate legal framework for protecting farm workers' rights. The legal framework for farm workers is consistent with international conventions South Africa has ratified. However, the report highlighted areas where much was left to be desired, and called for action from the government and civil society. The most notable legal gap was in respect to the protection of undocumented workers, and subsequently South Africans, from exploitation. With deteriorating political and economic conditions driving more refugees to seek a better life within the borders of South Africa, as well as growing feelings of xenophobia, surveillance of labour rights is even more important. The Congress of South African Trade Unions (Cosatu) shares a similar view. "We think it is important to address the resolution of conflict," Tony Ehrenreich, secretary general of Cosatu in the Western Cape, said. "In respect to undocumented workers, we believe they are entitled to workers' rights to labour laws. The reason we feel that way is also selfish. We're doubly concerned that migrants do not undermine existing labour standards." There are 20 affiliated unions within Cosatu. One of the ongoing projects involves working together on a drive to organise migrant workers, Ehrenreich said. The difficulty lies in the rising number of migrants, he added. "It's like constantly chasing a moving target. We come, we organise and start discussions with the employees so at least the next time when they go to work for another employer, they know their rights." The Transvaal Agricultural Union (TAU), a farmers' association, said it warned its members about employing undocumented migrants and, if caught doing so, were on their own. "We cannot do anything other than urge farmers to follow the law. If it hasn't been done, then the farmer has to stand by himself," Henk van de Graaf, assistant general manager of communications for the TAU, said. Van de Graaf said one of the problems was a lack in local labour. "Sometimes the problem is that local people go to big cities for work and there are not enough labourers. In those cases, some (farmers) take illegal immigrants and they work very well. "We understand sometimes the issue is a labour problem and people use immigrants. We tell (the farmers) not to get in trouble and that they must make sure any labourer who comes to them has a proof of identity." The TAU communicates with and informs its members via an internal news bulletin, but can only do so much when there are 6 000 members of TAU, but there are tens of thousands of farmers, said Van de Graaf. The Department of Labour has also been working on a mass public information campaign to educate farmworkers and employers about farmworkers' rights and the penalties for committing abuse. "We've been running television ads and advocacy campaigns," said David Esau, business unit manager for the Western Cape. "The challenge is language." The Department of Labour does not distinguish between foreign migrants and citizens when it investigates reports of labour abuses. However, the process of filing a labour complaint still includes asking the complainant to produce an ID or work papers, putting the undocumented worker in a potentially vulnerable situation. "The Department of Labour has a relationship with the Department of Home Affairs to identify certain groups of people to ensure labour rights and occupational rights," Esau said. "This is to identify particular employers who employ migrants and intervene to take action against the employer. "Right now, we're focusing all our energies into getting money back to employees," said Esau. The department identified the domestic, farming and security sectors as critical sectors based on the number of complaints received, Esau said. Occupational and construction sectors are a problem as well. "We have programmes in place to target those sectors and be proactive," he added. The department is planning to do a study next year based on statistics of the numbers of complaints. "The study will help us combat having to react through proactive actions," Esau said. Esau said the response to complaints had been very good in the Western Cape on the basis of response time. "The problems must be dealt with within 14 days. First, there is direct telephonic contact between the employer, worker and us where we try to mediate. There is an approval period of seven days. "After that time, if the matter becomes a conflict of interest, a labour inspector is then involved. Then it becomes an issue with documentation to prove allegations. "If the employer doesn't comply, the matter may then be referred to the labour courts or to CCMA. In the Western Cape, 93% of all complaints get resolved." About 20 cases a month go to court. Another obstacle the department faces is a lack of resources to effectively monitor labour practices. Currently, the department does not offer a specific hotline for people to call in about labour abuses. There are 12 labour centres throughout the provinces with approximately 919 labour inspectors. The job of a labour inspector is to conduct inspections and investigate labour abuses in all sectors of the work force. Corruption is a real problem and, combined with the lack of resources, serves as a major hindrance in effective monitoring, according to the Human Rights Watch study. The department also acknowledged problems. One way this is dealt with is sending labour inspectors out in teams. Inspectors are also given subsidised cellphones. "We are currently working to ensure there is a process in place with the National Intelligence Agency in terms of Home Affairs to ensure that (the labour inspectors and their superiors are) financially viable," said Ivan Polson, the head of inspection and enforcement at the department. "The fact is it's easy to exploit (foreign migrants) and this makes them more vulnerable." At present, the labour inspection reports are not publicly accessible. "Being publicly named and shamed could have major and serious impacts and yes it could work," Polson said. "Employers are touchy about their reputations." The department tried that tactic last year, but were brought to court after naming a company as committing labour abuses and a report by a labour inspector was found saying it was not doing anything wrong. "We're doing new research on the name and shame initiative which will be ready by the end of May," Polson said. The right laws are in place, but often times the follow-through falls short, said Esau. "It's the responsibility of the worker to alert us to any changes with the contract." Human Rights Watch suggested that the government should follow the International Convention on the Protection of the Rights of all Migrant Workers and Members of their Families. The convention would protect the interests of workers when employed in countries other than their own, and calls for a wide recognition of the fundamental human rights of migrants. Last month, the South African Human Rights Commission held a round-table discussion with human rights organisations and other NGOs to sign the agreement. The commission has been working with the Department of Labour to accompany inspectors when they carry out inspections, according to Vincent Moaga, the SAHCR's spokesperson. The problem again is a lack of resources. The commission is making preparations to release a second report of recommendations to the government that will include foreign immigrants. Moaga did not comment further on the content of the report. The Department of Home Affairs does not permit undocumented workers to get access to unpaid wages if they are deported. The department did not respond to calls or e-mails from the Cape Times. The Parliament Portfolio Committee on Labour could not be reached for comment. The Human Rights Watch report called for pressure to be put on the Executive to enforce legal protections for migrants as well as close supervision of labour inspectors.