SOCIAL PROTECTION FOR WORKERS POSTED TO AND FROM SOUTH AFRICA: A CRITICAL ASSESSMENT

Given the globalised nature of work in the twenty-first century, labour and social security law issues relating to worker-posting are sure to increase in the years to come. The purpose of this note is to assess critically the social protection of workers posted abroad from a South African perspective. The contribution addresses this topic by discussing various questions. It concludes by stressing the need for the adoption of a coherent approach as far as social protection for posted workers is concerned by, inter alia, promulgating an act of parliament to regulate the social security and labour law entitlements and obligations of these workers as well as their employers.In addition, it emphasises the need for and the importance of bilateral and multilateral social security and labour agreements between South Africa and other countries, particularly those where South African companies have established themselves. A sizeable number of South African companies (such as MTN, Vodacom, SABMiller, Sasol, Woolworths and Debonairs) have established, or are successfully establishing themselves, in African countries and beyond. At the same time, foreign companies (such as BMW, Levi Strauss, Barclays Bank and Vodafone) have registered, or are in the process of registering, in South Africa at an unprecedented rate.  It is true that these companies do employ locals. However, situations do arise requiring a global company to send a worker for a limited period (usually not exceeding twelve months) to carry out work in the territory of a State other than the State in which he or she normally works. This scenario is commonly known as worker-posting and does yield some benefits (including international exposure) to the (posted) workers, their employers and the economy in general. Nevertheless, if not properly regulated, worker-posting may have an undesirable effect, particularly on workers. For example, posted workers may find themselves concurrently covered (ie, at home and abroad) by social insurance schemes or not covered at all. As will be explained later, this can yield undesirable results. For example, it unnecessarily raises the costs of doing business for transnational employers. Furthermore, the period of stay for posted workers is limited and, as a result often does not lead to any entitlement to benefits. In addition, in the labour law sphere, posted workers may fall victim to abuse as regards the basic conditions of employment (eg, relating to pay and working time). The purpose of this paper is to assess critically the social protection of workers posted abroad from a South African perspective. According to the Asian Development Bank (ADB), “social protection” consists of policies and programmes designed to reduce poverty and vulnerability by promoting efficient labour markets, diminishing people’s exposure to risks, enhancing their capacity to protect themselves against hazards and interruption/loss of income”. The aim of social protection for that reason, is to avert or minimise social risks – in that way preventing or minimising human damage – by increasing capabilities and opportunities. As noted by the UN Commission: “The ultimate purpose of social protection is to increase capabilities and opportunities and, thereby, human development. While by its very nature social protection aims at providing at least minimum standards of well-being to people in dire circumstances enabling them to live with dignity, one should not overlook that social protection should not simply be seen as a residual policy function of assuring the welfare of the poorest – but as a foundation at a societal level for promoting social justice and social cohesion, developing human capabilities and promoting economic dynamism and creativity”. This contribution addresses this topic by discussing the following questions: What is the social protection status, with reference to social security and labour law, of workers posted to and from South Africa? Is the present social security and labour law protection framework ideal for extending social security and labour law protection to posted workers? To the extent that it is not, where and what are the gaps and challenges that are likely to hinder efforts to extend or strengthen social security and labour law coverage to this category of workers? Finally, what are the alternatives for improving, in a worker-posting context, the current social protection framework