The laws requiring that domestic workers be registered could eventually clear the South African job market of unskilled foreign workers, lawyers predict and unionists fear.
Department of Labour representative Snuki Zikalala says that — as is practice throughout the world — the government owes its citizens priority in the jobs queue, unless it is clear that no South African has the requisite skills for the job.
”We want to create employment and that employment should go to South Africans first. We would not like to see South Africans living unemployed and living in squalor and perpetual poverty. Our first responsibility is to South Africans,” Zikalala says.
He says any employer who hires aliens, even if they are legally in the country but do not have a work permit, is committing an offence.
”There are thousands of South African women roaming the streets who could do that job. You must prove to the government that there is no one else in the country who can do that job [before hiring an alien],” says Zikalala.
The Unemployment Insurance Contributions Act, which came into operation this month, compels employers of domestic workers to register their staff and contribute a percentage of their salary to the unemployment benefit fund.
The Act, however, only applies to employees who carry a valid South African identity document or have been granted work permits.
When applying for a work permit, the employer must prove that the recruit possesses a skill so rare that the post could not be filled by any South African.
On why the mining sector is able to hire mostly foreigners, Zikalala says the industry’s recruitment agency has shown that local workers are reluctant to work underground, hence the need to import services from across the border.
”In KwaZulu-Natal, for example, the people will tell you that they are not prepared to work where their grandfathers lie,” he says.
However, South African Domestic and Allied Workers’ Union general secretary Myrtle Witbooi says members have started alleging cases of victimisation.
”We are unhappy with the law as it stands now and would like it to include all domestic workers as long as they are legally in the country.
”Just last week a member told me that her boss had told her that she could fire her and replace her with an Angolan because there was no need to register foreigner domestics.”
Witbooi says her organisation will meet with other women’s organisations next week to formalise their displeasure with the law.
”We don’t want unemployment. Bosses can dismiss workers and replace them with foreigners. We want something that will cover both [foreign and local domestics],” she says.
Labour analyst Gavin Brown says the problems encountered by domestic workers reflect an international dilemma where unskilled workers from developing countries arrive in First World countries looking for better opportunities.
Brown says it also highlights some of the difficulties with the ”controversial” Immigrations Bill that Parliament has tried to amend since 1994.
He says the law as it stands at present in effect means that the South African workplace could be purged of foreigners without ”rare” skills.
The gap in the law means foreign workers could remain outside the scope of the Act, especially because it is unlikely that domestic workers will be able to convince the Department of Home Affairs that theirs is a rare skill.
”Currently those employees don’t have rights. It leads to an unhappy situation where foreign employees are often exploited.
”There are no quick solutions to the problem and it is going to take a long time to sort it out. It is the case of workers’ economic necessity being in collision with government policy,” says Brown.
The Legal Resources Centre (LRC) says a blanket ban on registering foreign domestic workers is likely to fail constitutional scrutiny. The centre says the Act could defeat its purpose if it excludes foreigners.
LRC director Charles Pillai says it is well known that many workers on farms, in shops and on construction sites are foreigners, and leaving them ”on the outer edges not only of society, but of the law” would not benefit anyone.
Pillai says a recent Pretoria High Court decision extending social welfare rights to residents who are not South African citizens but are in the country legally has set a precedent for government bodies dealing with foreigners’ needs.
Pillai says the court held that the Constitution provides that everyone, not only citizens, is entitled to social welfare rights. These, say Pillai, would include fair labour practices.
”We are saying that once anyone is in the country lawfully or the lawfulness of their arrival is being investigated, they are entitled to certain rights.
”The government should bring foreign domestic workers within the ambit of the Unemployment Insurance Fund regulations,” says Pillai.