Migrant Workers and Occupational Health and Safety Protection in South Africa

• Jurisdiction: South Africa
• Author: DJ Meyer
• Pages: 831-849
• Published date: 25 May 2019
• Date: 25 May 2019
• Citation: (2009) 21 SA Merc LJ 831

Migrant Workers and Occupational Health and

Safety Protection in South Africa

DJ MEYER*

University of South Africa

1 Introduction

Migration is a global reality. Each year an estimated 2.5 to 4 million

migrants

1

cross international borders without authorisation. In 2005 interna-

tional migrants in South Africa were estimated to number 11 062 million, or

2.3 per cent of the total population.

2

In 2007 only 250 000 of the migrant

workers in South Africa were documented.

3

Statistics show an inf‌lux of

migrants whose legal status in the country is often uncertain.

4

Migrant workers are often excluded from the application of legal protection

afforded to citizens in their host countries, and as a result, they are exploited

and exposed to deplorable working conditions.

5

The International Labour

* LLB (UP) LLM (Unisa). Temporary Lecturer, Department of Mercantile Law, School of Law,

University of South Africa.

1

The Green Paper on International Immigration of 1997, published on 30 May 1997 in the

Government Gazette No 18033, Vol.383 distinguishes among three types of migrants in South Africa:

those entering South Africa under the Immigration Act 13 of 2002, refugees and persons without legal

documentation. Undocumented migrants are persons who are in South Africa without legal permission

according to the Immigration Act or the Refugees Act 130 of 1998. For the purposes of this

contribution, the term ‘undocumented migrants’ refers to migrants who lack the legal permission to

work or reside in the country. See Human Rights Watch‘Keep Your Head Down: Unprotected Migrants

in South Africa,’ available at http://www.hrw.org/reports/2007/southafrica0207/7.htm, and the Global

Commission on International Migration ‘Report of the Global Commission on International Migration’

(October 2005) at 6, available at http://www.gcim.org/en/finalreport.html.

2

United Nations Department of Economic and Social Affairs/Population Division ‘International

Migration Report 2006: A Global Assessment’, available at http://www.un.org/esa/population/

publications/2006_MigrationRep/Profiles_country.pdf.

3

See Restructuring the South African Labour Market Report of the Presidential Commission to

Investigate Labour Market Policy (June 1996) ‘Labour Migration’ ch 9 in par 516, available at

www.polity.org.za/polity/govdocs/commissions/fin9.html.

4

The migrant population entering South African borders without documentation was estimated by

the South African Police Service (‘SAPS’) in 1996 to be between 5.5 million and 8 million (see

Restructuring the South African Labour Market op cit note 3 in par 528). In 2003 the number of

documented immigrants to SA was 10 578, an increase of 61,6% as compared to the 2002 f‌igure

of 6 545 in 2001. See ‘Summary’ in the Stats SA Report No. 03-51-03 (2003), available at

http://www.statssa.gov.za/publications/publicationsearch.asp. See also ‘Over Two Million Passed

through Ports of Entry in March’ (29 June 2009), available at http://www.citizen.co.za/index/

article.aspx?pDesc=99014,1,22.

5

See Patrick A Taran ‘Clashing Worlds: Imperative for a Rights-Based Approach to Labour

Migration in the Age of Globalization’in: Vincent Chetail Globalization, Migration and Human Rights.

Volume II, International Law Under Review (2007), as mentioned in International Steering Committee

for the Campaign for the Ratif‌ication of the Migrants’ Rights Convention Guide on Ratification,

International Convention on the Protection of the Rights of All Migrant Workers and Members of

their Families (2009), available at http://www.migrantsrights.org/documents/SCRatificationGuide4-

2009Final_000.pdf, at 6. In the case of Condición Jurídica y Derechos de los Migrantes

Indocumentados Opinión Consultativa OC-18/03 de 17 de Septiembre de 2003, solicitada por los

Estados Unidos de México, the Court stated (see International Steering Committee for the Campaign for

the Ratif‌ication of the Migrants’ Rights Convention Guide on Ratification, International Convention on

the Protection of the Rights of All Migrant Workersand Members of their Families at 32 n 36):

831

(2009) 21 SA Merc LJ 831

© Juta and Company (Pty) Ltd

Organisation (ILO) estimates that 337 million accidents occur annually in the

workplace. An estimated 2 million people suffer from work-related diseases

yearly. Work-related fatalities number 2.3 million per annum, 650 000 of them

involving hazardous substances.

6

One of the main factors contributing to

these statistics is migration.

7

As regards protection against occupational-

related deaths and diseases, migrant workers are often disadvantaged by poor

communication skills and a lack of training. Their desperation resulting from

the uncertainty of their legal status is often exploited by their employers:

8

‘Migrant workers continue to be particularly vulnerable, tending to be employed in ‘‘3-D’’

work (dirty, dangerous and demanding), with long hours, inadequately covered by social

security and with language and cultural barriers that make communication on OHS

[occupational health and safety]

9

difficult.’

10

The Promotional Framework for Occupational Safety and Health Conven-

tion No. 187,

11

read with Recommendation No. 197,

12

acknowledges ‘the

global magnitude of occupational injuries, diseases and deaths, and the need

for further action to reduce them’.

Migrants are frequently subjected to unequal treatment, unequal opportuni-

ties and discriminatory behaviour.

13

There are problems with the maladminis-

tration of payments made in terms of bilateral agreements, the receipt of

compensation amounts awarded for work-related injuries and the denial

of social benef‌its. Difficulties in attaining citizenship often result in expulsion

and deportation. Disparities in providing these non-citizens with workable

remedies for occupational-related injuries arise, and diseases and fatalities

ensue.

The Constitution of the Republic of South Africa, 1996, (‘the Constitution’)

and national labour legislation provide, for the most part, an adequate legal

‘The migrant quality of a person cannot constitute justif‌ication to deprive him of the enjoyment and

exercise of his human rights, among them those of labor character.A migrant, by taking up a work

relation, acquires rights by being a worker, that must be recognized and guaranteed, independent of

his regular or irregular situation [in] the State of employment. These rights are a consequence

of the labor relationship.’

6

See ‘Promoting Safe and Healthy Jobs: The ILO Global Programme on Safety, Health and the

Environment (SafeWork)’ World of Work 63, August 2008 at 4, available at http://www.ilo.org/wow/

PrintEditions/lang–en/docName–WCMS_099048/index.htm.

7

Idem at 9.

8

The White Paper on International Migration, Pretoria, Government Gazette No. 19920, April 1999

(‘the 1999 White Paper’) notes in par 4.4.6:

‘The Chamber of Mines has admitted that the conditions of employment of alien miners do not

differ from those of South Africans, but it has conceded that mines cannot f‌ind sufficient South

Africans willing to work under such conditions. Aliens often work in conditions which are inferior

to those that would most likely emerge through collective bargaining if only South Africans were

employed in the mines. This position remains unchanged in the Immigration Act of 2002.’

9

Inclusion supplied.

10

See ‘Promoting Safe and Healthy Jobs: The ILO Global Programme on Safety, Health and the

Environment (SafeWork)’op cit note 6 at 9.

11

This was adopted on 15 June 2006 and is available at http://www.ilo.org/ilolex/cgi-lex/

convde.pl?C187. On 5 June 2009, this Convention was ratif‌ied by only eleven states and as such was not

yet in force.

12

Available at http://www.ilo.org/ilolex/cgi-lex/convde.pl?R197.

13

Stefanie Grant ‘International Migration and Human Rights’, a paper prepared for the Policy

Analysis and Research Programme of the Global Commission on International Migration (2005) at 7.

(2009) 21 SA Merc LJ832

© Juta and Company (Pty) Ltd