Migrant Workers organization of South Africa (MIWUSA) is calling on the Minister of Employment and Labour Thulas Mxesi to pay foreign migrant workers, Refugees and Asylum seekers UIF-Covid-19 TERS as mandated by the law.

Foreign employees are considered employees in terms of the Labour Relations Act and they are then liable for contribution towards UIF and accordingly are able to claim same in the unfortunate event of unemployment.

On 4 July 2018, the Equality Court in Vereeniging ordered the Department of Labour to create a system that would allow asylum seekers to be paid their Unemployment Insurance Fund (UIF) benefits.

The applicant in the case was Hafiz Saddiq, a refugee who sought asylum in 2011 and whose employment was terminated in November 2016. For the last few years in which he was employed, UIF was deducted from his salary. But when he tried to claim UIF, the Department of Labour said it could not pay.

The department said its system required claimants to provide a valid identity document or passport number in order to claim benefits. Since Saddiq was an asylum seeker, he had neither of these documents or numbers. He was informed that there was no system to pay him.

The Promotion of Equality and Prevention of Unfair Discrimination Act prohibits discrimination on a number of grounds.  However, the Act prohibits discrimination on a ground that perpetuates a system of disadvantage or undermines human dignity. Saddiq argued that the department’s payment system amounted to unfair discrimination and infringed on his dignity.

The court agreed. It found the department’s system unfair and discriminatory, and that it created a systematic disadvantage for Saddiq based on his citizenship.

In the midst of a global pandemic Covid-19 the department has started to dispense the UIF-Covid-19 TERS to employers for South Africans and excluding Non-South Africans in the same workplace. We view as discrimination and a violation of the labour rights of the migrant workers who are afforded the same protection under the LRA.

The department of labour has issued a statement that their systems are unable to cater for those with passports which we view as being disingenuous. The department of labour cannot continue drag its feet and hide behind the fact that their systems are unable to cater for those with passports and asylum when they were ordered to fix that by the equality court.

This issue is worth ventilating,

According to Section 213 of the Labour Relations Act 66 of 1995, an employee is defined as “(a) 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 (b) any other person who is any manner assists in carrying on or conducting the business of the employer.”

In Southern Sun Hotel Interests (Pty) Ltd I.R.O. Southern Sun Waterfront Hotel v CCMA and Other the court, having had regard to the Labour Court judgment in Discovery Health Limited v CCMA and others where the arbitrator noted that it is beyond doubt that an illegal foreigner (or undocumented immigrant) is an employee for the purposes of the LRA, found that the respondent in this matter still enjoyed the status of an employee for purposes of the LRA and she was still entitled to the protection offered to employees in terms of the LRA, even though she did not have a valid work permit.

Based on the above definition which says “any person”, and we submit that this reference is all inclusive and encompasses foreigners as well and the dictum above in Southern Sun, we can establish that an individual who, although foreign, works for another person of for the State and who receives remuneration is considered an employee in terms of the LRA.

We can further establish from case law that a foreign employee whether legal or not is offered protection in terms the LRA. If a foreign employee enjoys the full benefits of employees then it should, by necessary implication, be trite that they should also be liable in terms of employee obligations which includes making contributions towards the Unemployment Insurance Fund which would subsequently affect their right to claim same.

The UIF Act does not specifically exclude non-residents and benefits appear to apply to those who make contributions. According to Section 16 of the UIF Act “Subject to section 14, an unemployed contributor is entitled to unemployment benefits contemplated in this Part for any period of unemployment lasting more than 14 days”

We can therefore conclude that foreign employees can contribute towards UIF since they are considered employees for purposes of the LRA and can further claim UIF provided they have made contributions towards it, subject to the exceptions provided by the UIF Act cited supra.

Pay Foreign migrant workers UIF!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!