It's all About the Money? Legal Pitfalls of Extending Social Protection to Unpaid (or Poorly Paid) Trainees

Constitutional right to social security

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?

For many years, South African courts have relied on International Labour Organisation (hereafter ‘the ILO’) conventions to interpret and give meaning to the fundamental social security and labour law rights enshrined in the Constitution, 1996. Social security and labour law has been one of the ILO's major initiatives of promoting decent work agenda since its inception in 1919. Decent work refers to the availability of employment in conditions of freedom, justice, security and human dignity. This is a multidimensional concept introduced by the ILO in 1999. It has four key components: employment conditions, social security, workplace rights and social dialogue. To this end, the preamble to the ILO Constitution sets out a number of objectives in this regard, including the protection of workers from illness, accidents, the protection of children, women, and the support of the elderly. The ILO pursues these noble values ​​by developing international labour and social security standards, which member states must ratify and incorporate into their national law. The purpose of these ILO standards is to provide a standard framework or regulatory tool to guide member states in establishing, improving and maintaining social security and labour law systems domestically, regionally and internationally. Against this background, this article examines selected themes on the impact of international standards on labour and social security rights enshrined in the Constitution. It looks at some of the relevant international instruments which have influenced the promotion and protection of these rights. Furthermore, it discusses the application of these standards in domestic courts, and shows how the courts have infused these standards into their judgments.

The article presents a study of the problematic issues of the conceptual framework of social security law. The author emphasises that without unification and meaningful streamlining of legal terminology in sectoral legal provisions, social security law cannot effectively regulate the relevant social relations. The internal and external forms of an independent branch of law must meet the highest standards of legal technique. The formation of a unified conceptual apparatus has a direct and immediate impact on the formation and understanding of the contours of the branch of law with all its inherent attributes. The law of social security is still at the stage of unification of the basic concepts, and this, in particular, affects the efficiency of reflection of its legal principles in sectoral regulations. Based on the analysis of constitutional provisions, current legislation of Ukraine, case law of the Constitutional Court of Ukraine and doctrinal sources, the author clarifies the content of such concepts as social rights, social protection, social security, social need, social need assessment, social insurance case of loss of livelihood, social sphere, social support, social service, social housing. The author notes that social legislation of Ukraine is characterised by non-compliance with one of the requirements in the area of law-making – unification of the terminology used therein. This has a negative impact on the definition of the unified content of the human right to social security, its types and social standards/guarantees. The author emphasises the controversial nature of the sectoral concept of social risk and questions the conclusion that it is social risk that is decisive in the procedure for exercising the relevant rights of an individual/family. The author argues that the main system-forming factor in social security law is social need. The following are identified as external forms of social need: lack of a place of residence and inability to provide one, social exclusion/exclusion of a person, loss of parents/breadwinners, objective poverty/low income/inability to pay the basic financial obligations of a person/family/household, inability to provide self-care and daily living without the support of others or without additional means of rehabilitation which will help to eliminate social barriers to ensure decent living conditions. It is supported that the concept of social protection is the basis for the legal community "social law", which unites legal norms in the field of social human rights. The system of social rights includes human rights recognised by the international/European community and enshrined in the relevant legal acts - standards. Keywords: law, social protection, social risk/social need, social support/ service/housing/sphere, social rights.

For many years, South African courts have relied on International Labour Organisation conventions to interpret and give meaning to the fundamental social security and labour law rights enshrined in the Constitution, 1996. Social security and labour law has been one of the ILO's major initiatives of promoting decent work agenda since its inception in 1919. Decent work refers to the availability of employment in conditions of freedom, justice, security and human dignity. This is a multidimensional concept introduced by the ILO in 1999. It has four key components, namely, employment conditions, social security, workplace rights and social dialogue. To this end, the preamble to the ILO Constitution sets out several objectives in this regard, including the protection of workers from illness, accidents, the protection of children, women, and the support of the elderly. The ILO pursues these noble values and goals by developing international labour and social security standards, which member states must ratify and incorporate into their national law. The purpose of these ILO standards is to provide a standard framework or regulatory tool to guide member states in establishing, improving and maintaining social security and labour law systems domestically, regionally and internationally. Against this background, this article examines selected themes on the impact of international standards on labour and social security rights enshrined in the Constitution. It looks at some of the relevant international instruments which have influenced the promotion and protection of these rights. Furthermore, it shows how the courts have infused these standards into their judgments in South Africa.

The United Nations Universal Declaration of Human Rights of 1948 asserts that social security is an inalienable human right. Realizing this human right is often considered, simply, as a matter of political will and of administrative aptitude. In these terms, the progressive realization of the human right to social security may be viewed as the outcome of an appropriately‐resourced political and bureaucratic process. Such a perspective, however, is clearly inadequate. Characteristically, bureaucracies are designed to cater to the needs of all, based on common procedures and common deliverables designed for the “typical” case. Yet such approaches often lack the necessary flexibility and resources to make a distinction between individuals, which acknowledge their respective differences and needs. To meet the international commitment to progressively realize universal social security coverage, social security administrations are key actors. However imperative this role may be, if the pursuit of this commitment fails to respect people's differences this will put at risk the meeting in full of what is envisioned by the human right to social security. To this end, this special issue aims to foster an understanding that the goal of universal coverage must necessarily also respect and respond to the individual needs of each and every person.

In the field of social law, the problem of the purpose of labour law and social security law is covered, which is understood through its spirit, meaning and value. It is emphasized that the change of philosophical-axiological, socio-economic and political-legal paradigms of society, de-Sovietization of labour law and social security law, the search for balance of interests between employee, employer and the state, the principle of solidarity as a basic principle of compulsory social insurance, the responsibility of the state for the effective functioning of the social security system requires a revision of the content of the main approaches to their interpretation and understanding. Attention is drawn to the fact that the most important task of de-Sovietization of labour law and social security law is to prevent the liquidation of the welfare state, i.e. to remove social protection functions from the state and provide for those who cannot earn a living and maintain an acceptable standard of living. It is substantiated that simultaneously with the transformation of relations in the field of labour there are interrelated changes in the legal regulation of relations on social security. Thus, it is noted that modern realities influence the new perception of social security, through the prism of mutual obligations of both the state and the population. This applies to formal employment, payment of «white» wages, payment of insurance premiums, and so on. It is emphasized that the main purpose of social security law is to create such legal norms that will be aimed at ensuring a sufficient standard of living. An important role in this is played by a stable, socially-oriented economy, because social support of the population, as a rule, is realized through the allocation of appropriate funds. It is concluded that the purpose of labour law and social security law, their social value, is to regulate labour and social security relations in order to give them a clear direction to create the necessary conditions for the realization of individual rights and freedoms through the state position on legal instruments of social protection. The state position in social law should be aimed at ensuring that the law provides social protection, addresses issues of social tension in society between different socio-demographic groups and the state.

Problem setting. The principle of guarantee is a very important principle of the field of social security law, an integral element of the entire system of its principles, a logical continuation of the legal requirements of all other principles, their addition. It is thanks to the action of this principle that social security law acquires the attributes of reality, can be considered as a full-fledged regulator of social security relations. After all, the principle of guarantee contains its own set of elements, means, conditions that allow to embody abstract regulatory and legal provisions, declared social security rights into the reality of social relations. Guarantee is an imperative, the most generalized legal requirement that gives the field of social security law signs of enhanced protection by the state, such properties that allow to assert that social values, benefits that are the subject of social security legal relations, constitute significant legal and state significance. Analyses of recent researches and publications. The principles of social security law in general, and the principle of guarantee in the field of social security in particular, were studied by such scientists as O. O. Bogdanova, K. V. Borychenko, T. Z. Garasymiv, K. V. Hnatenko, O. O. Duma, S. V. Kudlayenko, O. L. Kuchma, M. I. Inshyn, O. V. Moskalenko, I. Yu. Khomych, T. Yu. Khrenova, O. G. Chutcheva, O. M. Yaroshenko, and others. Article’s main body to investigate the content and specifics of the principle of guarantee in social security law Conclusions and prospects for the development. It is concluded that the social security legislation of Ukraine enshrines an overly narrow concept of understanding guarantees of social rights, there is a lack of a more comprehensive approach to clarifying the construction of the entire system of social security guarantees, determining the place of each of them, as well as proper regulation of its specifics. It is noted that when determining the content of guarantees as a category of social security, it is worth first of all realizing that this is a category that is closely related to the implementation of the subjective right to social security. Since guarantees in the field of social security are, first of all, guarantees of the implementation of the right to social security, its protection and defense. Guaranteed social security is defined as the state of effective functioning of the system of social security guarantees, as well as a positive subjective assessment by a specific person or society as a whole of the level of effectiveness of those means, methods and techniques that are designed to ensure the implementation of the subjective right to social security. And the principle of guaranteed social security law is a principle that defines the requirement for the mandatory establishment in the state of a system of interrelated objective and subjective factors, the content of which is made up of conditions, means, methods, techniques that, in their interaction, ensure the high-quality and full implementation of the human right to social security, if necessary its protection and defense. It is noted that despite the fact that a number of regulatory legal acts regulating social security relations enshrine the provision that «the provision of social security (of its appropriate type) is guaranteed by the state», none of them enshrines an exhaustive understanding of the system of those means and conditions by means of which such guaranteeing takes place.

The article examines the essence of social security law in conditions of the independent Ukrainian state development. In view of this, it was concluded that the social security law as a branch of national law is designed to satisfy the needs of public relations members, lifelong potentially subjected to social risks due to their natural properties. These needs are predetermined by the objective impossibility of the person to overcome the negative character of the life circumstances on their own and, therefore, there is a need of the third party assistance. Also, the article elucidates the legislative activity in the sphere of provision of social needs and interests of human and citizen, that was carried out under the influence of the international community and reflects the phased and systematic legal regulation of social security relations. This activity corresponded to the tendencies of that time to expand the complex of social rights and freedoms of human and citizen in modern democracies, which aimed to provide decent living conditions. In this connection, most of international prescriptions on social security issues are reflected in the Constitution of Ukraine. Even despite the fact that in international instruments has been a structural regulation of the similar in their content groups of public relations in the sphere of social protection, the authors of the Constitution of Ukraine were able to provide fundamental provisions of social security of human and citizen. Moreover, the article established that the existence of specific features of legal norms of social security law beside the other branches of law (labor, medical, educational law) serves the formation of integrated legal formation of a higher order in the system of law, which is denoted by the term "social law" so that there is a unification of the areas of law that have similarities in the subject, functions and methods of legal regulation. Therefore, the social security law belongs to social law, which is an independent structural formation in the legal system along with such legal structures as private and public law. The external legal relations of social security law (such as position in the legal system, the relationship with other branches of law) and its internal legal relations (such as object, method, system, principles and functions) indicate on the social nature of that brunch of law.

Platform work confronts traditional social security law in two dimensions. First, it makes the distinction between dependent and independent work uncertain and unclear, as the borderline between these blur. This is a profound challenge for social security law, because the criteria of dependent and independent work have to be precise. In the determination of work as dependent or independent, German law illustrates that a shift has taken place in determining employment status, moving from external and objective criteria to the contracting parties’ decision, which is to be executed under private law, but also respected under social security law. Second, platform work is heavily intertwined with digital communication, which has established a global environment for communication. Thereby, platform work can also facilitate international trade by making transnational work more accessible and efficient. Therefore, it seems necessary to examine the implications of platform work in international law. International law makes possible the choice of law, executed by the contracting parties. As a consequence, the protection of employees by social security law is related to the private law arrangements between the service provider and the service recipient. Gaps in social security protection of service providers are widespread. In many countries, awareness of the social protection deficits of platform workers has grown and responses to improve the social status of platform workers have come under scrutiny. Analysis reveals that there is a joint responsibility of the service provider and the service recipient to be bound to social security coverage under the same national legislation. Nevertheless, from an international law perspective, it is shown that reforms are confronted with restrictions under international law.

One of the major problems encountered in the implementation of the rule of law is in the absence of the meaning of law or what it wants to tell is not clearly defined, the true meaning is revealed through interpretation. In labor law and social security law; Although the review will benefit from the rules for the common law, workers-interpretation in favor of the insuree is effective. This policy is considered as one of the fundamental policies of the Labour and Social Security Law. Located between the basic policies of business law, the protection of the workers, which is a consequence of the interpretation in favor of the insuree policy, shows itself in the form of interpretation in favor of the insuree in the social security law. One factor for necessity of supporting interpretation in favor of the insuree is, social security right is among the basic human rights. In particular, the interpretation of legislation related to the social security right by constitutional guarantee, it is important to keep in mind this basic policy. The overall purpose of the social security law is to benefit from this right by more people, namely the expansion of the scope. In this study, the place of interpretation in favor of the insuree and limitations related to this interpretation will be examined in the light of samples of Supreme Court Decisions and regarding substance of the Constitution and laws.

Problem setting. In recent years, as a result of legislative activity, many new legal principles have emerged that guide the legal regulation of the social sphere and indicate the general directions of the implementation of social rights. As a result, there is both a theoretical and a practical need to clarify their content and streamline the principles of social security law throughout the system. Characterizing the principles of social security, it should be noted that today there are many classifications of sectoral principles and those that were developed in Soviet times, and those that are more or less focused on the specifics of today. Some principles disappeared, losing their relevance and ceasing to affect all social security; others, on the other hand, have become more and more confident in the system of sectoral principles, having barely appeared in social security legislation. One such principle is the principle of targeting. Analysis of recent researches and publications. Problems of providing targeted assistance in their scientific works were studied by such scientists as O. O. Bogdanova, T. Z. Garasimov, A. Gladun, S. V. Kudlaenko, O. V. Moskalenko, I. Yu. Khomych, T. Yu. Khrenova, O. Chutcheva, O. M. Yaroshenko and others. Target of research – to find out the content of the principle of targeting in the law of social security and to determine its place in the mechanism of legal regulation of the law of social security in modern conditions in the implementation of social rights. Article’s main body. Targeted social protection in general is aimed at determining the real standard of living of persons seeking social assistance, their real need for social assistance. It is a characteristic tool of social programs to combat poverty, which allows to achieve a significant effect by qualitatively identifying the criteria characteristics of “beneficiaries”. The main advantage of the targeted social protection system is, firstly, the more efficient use of available limited budget funds to provide social assistance to the most vulnerable categories of citizens; secondly, most of such funds are spent on poor citizens. Therefore, addressing the system of social protection of vulnerable groups can, on the one hand, significantly increase the ability of this system to provide social assistance and services to those who really need it, and on the other – to prevent access to budget funds for state social assistance and provision of social services to those to whom it is not intended. This, in turn, will reduce the overall cost of social assistance programs at the state and regional levels, which is an important factor given the limited financial resources. Conclusions and prospects for the development. The principle of targeting social benefits, taking into account the financial situation of a particular person in a particular life situation, recognized by the state society as socially respectable, will contribute, on the one hand, more effective implementation of social rights, as it will take into account the specific life situation and, on the other hand, without limiting the volume and types of social benefits already provided by the current legislation, will promote a more rational distribution of funds from public consumption funds. Targeted social protection should be aimed at determining the real standard of living of persons seeking social assistance, their real need for social assistance

Досліджено процеси формування та набуття соціальними правами правового спрямування на основі законодавчого досвіду країн європейської спільноти. Проаналізовано еволюцію функцій держави в умовах набуття соціальними правами юридичного спрямування. Зауважено, що важливим аспектом у роботі цього напряму є аналіз міжнародних стандартів, стандартів Ради Європи та Європейського Союзу щодо реалізації та забезпечення соціальних прав людини.

I 1. The Future of Social Rights Protection in Europe 2. Social Rights in European Constitutions II THE EUROPEAN SOCIAL CHARTER 3. The Supervisory Machinery of the European Social Charter: Recent Developments and Their Impact 4. Assessing the Strengths and Weaknesses of the European Social Charter's Supervisory System 5. Domestic Enforcement of the European Social Charter: The Way Forward 6. The Material Impact of the Jurisprudence of the European Committee of Social Rights III THE EUROPEAN UNION 7. Anchoring the European Union to the European Social Charter: The Case for Accession 8. The Trajectory of Fundamental Social Rights in the European Union 9. Social and Labour Rights under the EU Constitution 10. Fundamental Labour Rights after the Lisbon Agenda 11. How to Be Fundamental with Soft Procedures? The Open Method of Coordination and Fundamental Social Rights IV ESC JURISPRUDENCE AND THE EU ACQUIS: THE COMMON CORE AND THE ADDED VALUE? 12. The Right to Work 13. Walking in the Same Direction? The Contribution of the European Social Charter and the European Union to Combating Discrimination 14. The European Social Charter and EU Anti-discrimination Law in the Field of Disability: Two Gravitational Fields with One Common Purpose 15. We Don't See a Connection: The 'Right to Health' in the EU Charter and European Social Charter V BEYOND EUROPE'S BORDERS 16. The Integration of Social Rights Concerns in the External Relations of the European Union 17. European Fundamental Social Rights in the Context of Economic Globalization

Social law exists in Poland as an area of research and didactics. However, it is questionable whether social law constitutes a separate scientific discipline (this is the case in Germany, for example). It is partly caused in Poland by the lack of a legal definition of social law. However, it does not change the fact that Poland is currently facing the massive challenge of mastering the demographic crisis and limiting its adverse effects, which requires undertaking deep systemic reforms, especially in such areas as healthcare, social assistance, employment policy, social insurance, and family policy. The most critical factors contributing to demographic ageing in Poland are falling fertility rates and increasing life expectancy. Moreover, the ageing of the post-war baby boomers contributes to demographic ageing in Poland. It is also worth signalling the low labour force participation of older age groups, which consequently means that the actual number of pensioners in Poland is higher than the demographic situation would indicate. All these phenomena undoubtedly pose a challenge to Poland’s social security and healthcare systems. The point of reference for the noted considerations was the European Social Charter, which Poland acceded to in 1997 (Poland was bound by the provisions of all 19 articles of the second part of the Charter, but excluding some paragraphs of these articles). This study first shows the status of the regulation of social rights at the level of the 1997 Polish Constitution. Considering the jurisprudence of the Constitutional Tribunal, the following are described: 1) the right to healthcare and the citizen’s right to equal access to publicly funded healthcare services, 2) the right to social security, 3) assistance to persons with disabilities, 4) the family’s right to assistance from the state, and 5) the protection of children’s rights. Next, the study presents the place of social rights regulations in the Polish legal system. Then, focusing on Poland’s realisation of the right to social security under the European Social Charter, it presents the conclusions of the European Committee of Social Rights from the reporting cycles to date, starting from 1997. Finally, the study details current regulatory issues in the field of social law, showing the problems of sustainable development in light of the aforementioned demographic challenges.