In South Africa, not all risks are catered for by public schemes. The current public social schemes exist to deal with particular contingencies such as: unemployment, maternity, traffic accident-related injury or death, unemployment and employment injuries and diseases. When it comes to old age and health, private insurance schemes are considered. This position is the same for both employees ordinarily working in the country and migrant employees.

In the employment sphere, however, the social insurance for migrant employees are limited to only certain circumstances.

The Compensation for Occupational Injuries and Diseases Act, 130 of 1993 (“COIDA”) provides for compensation for disablement caused by occupational injuries or diseases sustained or contracted by employees in the course of their employment, or for death resulting from such injuries or diseases; and to provide for matters connected therewith. According to section 23(3)(b) of COIDA, where an employee performs his/her duties within South Africa for a period longer than 12 months, that employee is deemed to be employed in the Republic and, therefore, enjoys the protection of the Act. This principle is also applicable to persons who ordinarily work in the Republic, however, performs work on a temporary basis outside of South Africa.

Therefore, migrant workers also qualify for protection under COIDA. However, there is a duty on the employer to make the necessary arrangement for those employees with the Commissioner.

Where it is a case of a non-resident employee who qualifies for protection in terms of COIDA and social protection in another country where he/she performs work, following an occupational injury, he/she must elect to claim compensation either in terms of COIDA or in terms of the law of the other country.

When it comes to unemployment insurance, migrant employees seldom enjoy protection under the Unemployment Insurance Act, 63 of 2001 (“UIA”). According to section 3(1)(d) of the UIA , persons who enter the country for the purpose of carrying out a contract of service , apprenticeship or learnership, are not covered by the Act, if there is a legal or a contractual requirement (agreement or undertaking) that such a person must leave the country, or that such a person be repatriated, upon termination of the contract. Therefore, the employer and migrant employee will not be contributing towards the Unemployment Insurance Fund (“UIF”).

Unfortunately, this leaves migrant employees to be vulnerable and exploited by South African employers as they are seen as a “cheaper” labour option.

In South Africa, public insurance schemes mostly protect employees that are part of the formal sector. Therefore, the migrant employees who find themselves in the informal sector will not enjoy the limited coverage of South Africa’s public insurance schemes.

Accordingly, migrant employees are not protected to the same extent as employees ordinarily working in South Africa. However, legislation such as COIDA and UIA do provide for coverage for migrant employees in limited circumstances. This limited coverage usually only get utilised by employees in the formal sector.