Redesigning the South African unemployment protection system: a socio-legal inquiry

LL.D

Collective bargaining and the representation in the gig economy in South Africa: A call for a purposive approach

The growing interest of private individuals to participate in gig and platform work poses some organisational challenges to trade union movements in many countries. The situation is vexed in South Africa, as recent trends reveal that gig workers, without legislative recognition, have collectively organised themselves to demand better working conditions from digital platform providers. The challenges associated with gig work evoke certain legal debates about the legislative preparedness of South Africa to deal with the increasingly changing dynamics of the labour market. This article discusses collective representation and bargaining in the gig economy in South Africa. The article reflects on the employment nature of gig workers and ascertains whether gig workers can effectively organise themselves for collective bargaining in South Africa. Considering the legal complications that contemporary forms of employment present, this article suggests that the trade unions movement in South Africa must adopt legal strategies that revitalise union interests. This contribution calls for existing trade unions to extend their representation to include gig workers. The article suggests that the current constitutional framework governing collective bargaining and representation can accommodate and promote the collective representation and bargaining rights of gig workers in South Africa

Social Protection Law in the Republic of South Africa

The South African social protection system makes provision for all the nine standard branches contained in the International Labour Organisation (ILO) Social Security (Minimum Standards) Convention 102 of 1952, namely: medical care, sickness, unemployment, old age, employment injury, family, maternity, invalidity, and survivors’ benefit. Provision for the aforementioned branches is established and regulated by law. The article critically assesses the social protection legislative framework in the Republic of South Africa. It does that by largely focusing on the constitutional foundation of the social protection system, the design of the legal entitlements to social benefits, and pertinent administrative procedures and accountability mechanisms. This is followed by some concluding observations

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

Towards the Africanisation of social protection in Southern Africa

This contribution, while concentrating on one of Professor Edwin Kaseke's favourite research topics (i.e., social protection) and reflecting on some of his work (in some instances with colleagues, argues that Professor Kaseke essentially called for the need for and emphasised the importance of the Africanisation of social protection in Southern Africa. Within the framework of this paper, Africanisation entails a scenario whereby social protection is responsive to and accommodative of the needs and challenges imposed by the local (African) context. Thus, social protection systems must be relevant to the social needs and challenges of the communities they are intended to serve. This should be evident from among others, the history of social protection in Southern Africa; conceptual framework, legislative and policy structure; social risks; personal and territorial scope of coverage; administrative  and institutional design; quality and quantity of benefits disbursed; as well as monitoring, adjudication and enforcement mechanisms. The article pursues its objective by focusing on the aforementioned key social protection areas which formed part of Professor Kaseke's interest in a majority of his research output on social protection. This discussion is followed by some concluding remarks from a forward-looking perspective.Keywords: Africanisation, social protection, social assistance, social insurance, social allowances, informal social protection, Southern Afric

CHARITY BEGINS – BUT DOES NOT END – AT HOME Khosa v Minister of Social Development; Mahlaule v Minister of Social Development 2004 6 BCLR 569 (CC)

Social assistance has emerged, within a broader social security system, as an important part of those measures that prevent and/or alleviate destitution in South Africa. Social assistance, as defined by the Committee of Inquiry into a Comprehensive System of Social Security for South Africa (Committee of Inquiry into a Comprehensive System of Social Security for South Africa Transforming the Present – Protecting the Future: Consolidated Report (2002) 36), means “state-provided basic minimum protection to relievepoverty, essentially subject to qualifying criteria on a non-contributory basis”. In April 2004, more than 7.9 million people were reported to benefit from the social grants (National Treasury (Republic of South Africa) Trends in Intergovernmental Finances: 2000/01-2006/07 (2004) 74). In most instances, predominantly in black households, grants (especially old-age grants) are the only family income. Old-age grants in particular are used not only to see the elderly through their old-age, but they also stretch far beyondthat to cater for the needs of the family. This important scheme, particularly its scope of coverage, has been a source of recent social security law debates. Central to these debates was the issue of non-citizens’ (non-)entitlement to the same social assistance benefits as citizens. This subject has no clear-cut answer(s)

Financial Services and Arrangements to Facilitate the (Ex)Portability of Social Security Benefits in the Southern African Development Community

This contribution reviews the financial services and arrangements to facilitate the (ex)portability of social security benefits in the Southern African Development Community (the SADC). It commences by providing a general background to the theme it covers by focussing on the (ex)portability of social security as part of the coordination principles contained in the pertinent International Labour Organisation social security conventions, the (ex)portability of social security benefits provided for in SADC social security instruments, the key purpose of the payment of social security abroad, and the negative impact of the absence of the suitable cross-border payment of benefits in the SADC. It proceeds by discussing the common methods used for the cross-border payment of social security benefits in the SADC. These models are business-to-business, business-to-client, government institution-to-government institution, and client-to-business. The contribution continues by reviewing selected challenges in the region facing financial services and arrangements to facilitate the payment of social security abroad. These challenges are the lack of a single currency, remittance costs, and unbanked persons. The paper concludes by making recommendations for developing a coherent regional and enabling framework for the payment of social security benefits abroad