The Aliens And Our Law?

Our Immigrant population
We all know how many legal and illegal immigrants are at present residing in South Africa.  Numerous figures relating to the number of illegal persons are being bandied about.  One hears of 2 million, 4 million and even 6 million.  I have a strong suspicion that nobody really knows what the exact figure is.
I have no intention of addressing the shortcomings of our control systems – that is, in any case. common knowledge.  The solution for this problem is so complicated that I sometimes doubt that there is one!

The aliens in the workplace
I need to share a worrying aspect about the illegal immigrant situation vis-a vis workers’ compensation with you.  Let me kick off with a practical example (it is a true story as they say in the movies) I recently had a client visiting me.  He conducts a labour intensive type of business.  When discussing matters at a later stage at his premises I asked one of the employees a simple question which he obviously did not understand.  One of his colleagues however responded in English and answered the question.  The short of the matter appeared to be that not a single employee on those premises was from the dear RSA.  Two were from Zimbabwe, one from the DRC, one from Mozambique and one from Nigeria.  The rest of the workforce that were not present, I am sure was similarly composed.  This type of employer was most likely picking up employees from the side of the road in the mornings and employing them at a daily fee as long as work is available.  I did not enquire about the daily remuneration.  One can only guess why they were preferred to South African workers.  What I do know is that all these contracts are invalid because the one party is illegally in the country.

How does this problem affect workers’ compensation legislation?
To answer this question let us analyze what will happen if one of the illegal casuals is injured on duty.  He or she will be taken to a hospital by the employer as is required by law for treatment.  The employer will complete the Report of an Accident (W Cl 2) etc and the employee will receive treatment by a private doctor and hospital.  The medical service providers will be compensated out of the Compensation Fund by the Compensation Commissioner.  Depending on the nature of the injury the employee could even receive Temporary Total Disablement benefits or Permanent Disablement benefits.  So far so good – or so it appears
What is however relevant although not everybody might agree is whether the illegal workers appeared on the wage records of the employer?  If not, and I don’t know whether this is in fact the case as I do not undertake forensic audits, their earnings will not be declared to the Compensation Commissioner for assessment purposes.  In short no premium will be paid for theses people who do not officially appear on “the books”.  You make your own deduction about who is subsidising the compensation for the “non-existant” employees.  The irony of the matter is that the COID Act has always, even since the 1941 Act been very lenient with the right to compensation – even for the invalid contracts.  For workers’ compensation, the vested right of the employee, as defined, was always almost sacred.  But the people then had no crystal ball for the years 2000+.  Section 27 of the COID Act reads as follows to illustrate:

Special circumstances in which Director-General may make award
27. If in a claim for compensation in terms of this Act it appears to the Director-General that the contract of service or apprenticeship or learnership of the employee concerned is invalid, he may deal with such claim as if the contract was valid at the time of the accident.

I will not bore you with legalistic details and the case law in this regard but workers’ compensation legislation has persistently ignored invalid contracts of service.

Financial Implications
It does not take a financial wizard to know that in the long term the fact that people for whom no contributions to the Compensation Fund have been paid but who are compensated in any case, will result in shortfalls for the Fund.  The alternative is that employers are going contribute more every year for the losses.  Whether the Department of Labour with all the new regional Commissioners is going to monitor the situation will have to be seen.  Maybe you should ask them since it may be your Assessment that’s being applied to subsidise employers of illegal aliens.

Till next time.