‘Social insurance provides financial assistance for persons who have become unemployed as a result of illness, maternity, dismissal, retrenchment, occupational injury, occupational diseases and for survivors in the event of the death of the breadwinner. The [Unemployment Insurance Fund (UIF)] is the source of many of these benefits. Benefits in the form of partial income replacement for persons who are injured or become ill in the course of their employment are payable from the [Compensation for Occupational Injuries and Diseases] Fund’ (Yvette Basson ‘The compliance of the South African social security system with the international covenant on economic, social and cultural rights’ (2020) 41 Obiter 850).
‘Social security is a recognised human right in South Africa, [Southern African Development Community (SADC)] and internationally’ (Bongani Khumalo ‘Social insurance coverage for SADC migrant workers in South Africa: A regional and international framework compliance analysis’ (2022) 43 Obiter 570). Everyone has the right to obtain social security, which includes appropriate social assistance if they are unable to support themselves and their dependents, as stated in s 27(1)(c) of the Constitution. Social security is a general term that includes ‘social assistance and social insurance’, the latter of which is the subject of this article (Khumalo (op cit)).
‘The Unemployment Insurance Fund (UIF) was established in terms of the Unemployment Insurance Act [63 of 2001]. The UIF provides benefits for persons who were employed and making contributions to the UIF and who are no longer able to work as a result of contingencies such as pregnancy, illness and dismissal. The entity responsible for the administration and management of the fund is the Department [of Employment] and Labour, which is a state department forming part of the South African government. The UIF is also subject to the provisions of the Public Finance Management Act [1 of 1999]’ (Basson (op cit)).
The purpose of the Unemployment Insurance Act is to provide income security in the event of temporary unemployment and to establish the UIF, to which employers and employees must contribute (Khumalo (op cit)). Participation in this program is required, unless excluded in s 3, which is briefly discussed below (Khumalo (op cit)). Five circumstances are covered by the Act, namely, dependant’s benefit, maternity or adoption, illness, and unemployment. ‘All employees who are regarded as “contributors” in terms of section 1 of the Act are eligible for unemployment benefits’ (Khumalo (op cit)). Section 3(1)(d) [the UIA has been amended, and s 3(1)(d) is no longer present] stipulates, however, that migrant workers who are required to depart the Republic at the termination of their employment are not considered ‘contributors’ in the sense that term is defined in s 1 of the Act (Khumalo (op cit)). This implies that the situations mentioned in s 12 of the Act do not apply to migrant workers (Khumalo (op cit)). However, the Act provides benefits to migrants who have been granted permanent resident status (Khumalo (op cit)). This is merely because, even once their employment ends, these migrants are not obliged to leave the Republic (Khumalo (op cit)). Potential recipients can visit any Labour Centre or provincial office of the Department of Labour to apply for unemployment insurance benefits (Khumalo (op cit)). ‘Section 17(2) of the Act provides that an application must be made within six months of the termination of the contract of employment’ (Khumalo (op cit)).
According to the Compensation for Occupational Injuries and Diseases Act 130 of 1993 (COIDA), an employee is anyone who has agreed to work under an employer’s terms of service, apprenticeship, or learning, whether those terms are stated explicitly in the contract or not, oral or written, and whether payment is made in cash or in kind or is determined by the amount of time worked (Khumalo (op cit)). This definition makes it very evident that immigrant status or citizenship does not affect insurance coverage (Khumalo (op cit)).
‘It is also clear that even though the Act has numerous provisions on employees who are excluded from coverage, such exclusions have nothing to do with the employees’ nationality or status in the Republic. This means that migrant workers are also covered for occupational injuries and diseases under the Act. Compensation payable is paid to a worker’s dependants if he or she dies from the occupational injury or disease’ (Khumalo (op cit)). This is different from what has been enforced in our labour social insurance benefits that migrant workers do not receive any benefits from the COIDA, the silent wording of migrant workers in the definition of an ‘employee’ is an issue.
The foregoing discussion makes it very evident that our social insurance laws are not perfect and sometimes even deny migratory workers their right to social security. This persists in spite of the constitutional promise of equal treatment under the law. Even though the Charter of Fundamental Social Rights in SADC, 2003 calls for equal treatment of citizens and migrant workers in matters pertaining to occupational diseases and injuries, laws like COIDA still force migrant workers and their former employers to go through bureaucratic procedures that either impede or delay benefit access.
When compared to the provisions of the Code on Social Security in SADC, 2007 which particularly demand equitable ‘treatment of citizens and migrant workers, including irregular migrants, in their access to maternity, unemployment and occupational’ health care, ‘the South African unemployment insurance system falls short’ (Khumalo (op cit)). Inadequate institutional and administrative capability across the region contributes to migrant workers’ limited access to social insurance benefits in South Africa (Khumalo (op cit)). When migrant workers turn to their own governments for help, they encounter resistance since they are unable to get in touch with South African authorities in their home nations (Khumalo (op cit)).
‘The 2003 Agreement between France and Tunisia seeks to ensure the social protection of migrant workers from both countries, including employed and self-employed persons, unemployed persons receiving benefits, nationals of one of the two states parties, refugees and stateless persons. Hence, it also covers migrant domestic workers. The Agreement contains provisions on all branches of social security, covers 54 per cent of the Tunisian community in France and provides access to healthcare and social security benefits on the same basis as French citizens where the condition of legal residence is met’ (International Labour Organisation ‘Extending social protection to migrant workers, refugees and their families’ (www.ilo.org, accessed 2-12-2023)).
‘The inclusion of social security provisions in bilateral labour arrangements’ between South Africa and migrant workers’ countries ‘can be a step towards the protection of migrant domestic workers’ rights’ in our country although ‘coverage will also depend on related national laws and social security agreements, where these exist’ (International Labour Organisation ‘Intervention Model: For extending social protection to migrant domestic workers’ (www.ilo.org, accessed 2-12-2023)).
‘By virtue of the principle of equality of treatment’ and the above discussion, it can be said that SA can learn from ‘Tunisian workers in France [who] are entitled to the same social security benefits as French citizens’ (International Labour Organisation (op cit). With respect to the applicable legislation, migrant workers in South Africa are, in principle, subject to country’s national social security legislation.
Phakisho Mello LLM (Labour Law) (NWU) is a Labour Law Lecturer at the North-West University, Mahikeng Campus.
This article was first published in De Rebus in 2024 (Jan/Feb) DR 6.
