A consideration of the employment rights of asylum seekers and refugees within South Africa as contextualised by the Watchenuka and Discovery Health judgments

by | Oct 4, 2019 | ILJ, ILJ V38 I1

A consideration of the employment rights of asylum seekers and refugees within South Africa as contextualised by the Watchenuka and Discovery Health judgments

Authors Daven Dass, Alicia Leanne Raymond

ISSN: 2413-9874
Affiliations: Director of the Wits Law Clinic, Lecturer and Practising Attorney, School of Law, University of Witwatersrand; Associate Lecturer and Practising Attorney, School of Law, University of Witwatersrand
Source: Industrial Law Journal, Volume 38 Issue 1, 2017, p. 26 – 42

Abstract

Many foreign nationals arrive in South Africa because they are fleeing their countries of origin based on a well-founded fear of persecution caused by conflicts affecting their countries. Having arrived in South Africa these foreign nationals are required to apply for asylum in terms of the Refugees Act. Problems arise where during the process their application for asylum is rejected, or their refugee status is withdrawn with the result that they become undocumented migrants. Because the Immigration Act prohibits foreign nationals from being employed in South Africa without a work permit or refugee status, undocumented migrants in the country are unable to sustain themselves by finding lawful employment. This article explores the employment rights of such undocumented migrants in light of the courts’ decisions in Watchenuka and Discovery Health. These cases respectively find that it is unconstitutional to bar foreign nationals from seeking employment, and that undocumented migrants are employees and should therefore be afforded the same employment rights and legislative protections against dismissal as other lawful employees. It is concluded that while the position of undocumented foreign migrants remains precarious, the courts’ findings in these two cases provide some reprieve to foreign nationals.

Labour law, economic development, and the minimum wage: Comparative reflections on the South African debate

by | Oct 4, 2019 | ILJ, ILJ V38 I1

Labour law, economic development, and the minimum wage: Comparative reflections on the South African debate

Authors Simon Deakin

ISSN: 2413-9874
Affiliations: Professor of Law, University of Cambridge
Source: Industrial Law Journal, Volume 38 Issue 1, 2017, p. 1 – 25

Abstract

As South Africa debates the introduction of a statutory minimum wage, this article reviews comparative evidence on the economic and social effects of minimum wage laws. Minimum wages can be found in countries at all levels of development and have recently experienced a revival after a period of relative decline under the influence of neoliberal economic policies during the 1980s and 1990s. Minimum wage laws have persisted because they are highly effective in addressing in-work poverty while encouraging technological and organisational improvements by firms. They also help to maintain the tax base and limit the extent of public expenditure on fiscal transfers aimed at enabling households to access a living income. In the case of developing countries, they can help bridge the middle income gap by underpinning demand for locally produced goods and services and by supporting industrial upgrading. Experience suggests that minimum wages need to be set at a relatively high level, closer to 60% than 40% of average wages, if they are to induce significant social and economic upgrading, but that getting to this level requires not just the marshalling of evidence but the building of consensus on the part of key actors in government and industry and across civil society. Comparative evidence also points to the importance of minimum wages acting as a complement to, and not a substitute for, sector-level collective bargaining. These points are explored in detail through an analysis of the evolution of the British minimum wage system, and some implications are drawn for the South African debate.

Legislative Note: The new Labour Bills: An overview and analysis

by | Oct 4, 2019 | ILJ, ILJ V39 I4

Legislative Note: The new Labour Bills: An overview and analysis

Authors Shane Godfrey, Darcy du Toit, Mario Jacobs

ISSN: 2413-9874
Affiliations: Coordinator, Labour and Enterprise Policy Research Group, University of Cape Town; Emeritus Professor, Faculty of Law, University of the Western Cape; Researcher, Labour and Enterprise Policy Research Group, University of Cape Town
Source: Industrial Law Journal, Volume 39 Issue 4, 2018, p. 2161 – 2189

Abstract

None

Revisiting strikes in essential services

by | Oct 4, 2019 | ILJ, ILJ V39 I4

Revisiting strikes in essential services

Authors Darcy du Toit, Mario Jacobs, Roger Ron

ISSN: 2413-9874
Affiliations: Emeritus Professor, Faculty of Law, University of the Western Cape; Researcher, Labour and Enterprise Policy Research Group, Faculty of Law, University of Cape Town; Researcher, Social Law Project, Faculty of Law, University of the Western Cape
Source: Industrial Law Journal, Volume 39 Issue 4, 2018, p. 2131 – 2147

Abstract

Strikes and lock-outs in ‘essential’ and ‘maintenance’ services are prohibited in South Africa; disputes between workers and employers in essential services must be referred to arbitration. Despite this, strikes in essential services are far more common than arbitration proceedings. The article argues that this is not simply a legal problem but that unprotected or unlawful strike action is driven by socio-economic and historic dynamics, above all by the extreme inequality dividing South African society. It examines a number of alternative mechanisms that could be used to supplement the existing dispute resolution system, including the determination of minimum services by the Essential Services Committee. However, the question remains to what extent parties would adhere to minimum service determinations made against their will. The article argues that successful remedial measures would have to be based on an appropriate balance between workers’ right to strike and the public right of access to essential services. To achieve this, it suggests, negotiations between employers, unions, and other organisations that are genuinely representative of all relevant stakeholders, including users of essential services, would be crucial.

The conundrum of unclaimed retirement benefits held by South African Retirement Funds

by | Oct 4, 2019 | ILJ, ILJ V39 I4

The conundrum of unclaimed retirement benefits held by South African Retirement Funds

Authors Clement Marumoagae

ISSN: 2413-9874
Affiliations: Senior Lecturer, School of Law, University of the Witwatersrand
Source: Industrial Law Journal, Volume 39 Issue 4, 2018, p. 2107 – 2130

Abstract

This article examines the manner in which retirement fund benefits belonging to former retirement fund members or their beneficiaries are dealt with in South Africa. In particular, it highlights the difficulties associated with tracing former members and their beneficiaries who are entitled to receive these benefits. Relevant legislation dealing with unclaimed benefits in South Africa is discussed with a view to assessing whether it provides any solution to the challenge relating to the payment of these benefits. The article advances the argument that there is a need to establish a central unclaimed benefits fund mandated to address the challenge of unclaimed benefits in South Africa.