Abstract
This article investigates the interplay between labour law and international law in the context of the diplomatic employment relationship. The overriding effect of the Constitution of the Republic of South Africa, 1996 as supreme law to protect the labour rights of employees is weighed against the effect of various binding international legal instruments aimed at protecting diplomats' right to immunity. In view of the competing rights of employees and diplomatic employers, the question in this regard is to what extent employees in a diplomatic employment relationship can rely on their right to "fair labour practices" in the broad sense and the overall protection afforded to employees whose rights are infringed. In view of the perception that diplomatic employers can hide behind a veil of diplomatic immunity and in the absence of judgments by the Commission for Conciliation, Mediation and Arbitration (CCMA) and the Labour Court, answers and guidelines were sought from various international courts and legal instruments. However, it is pointed out that the application of labour law and international law to protect the interests of individuals against a state is an exceptionally sensitive and controversial issue. It is suggested that the international relationship between two states be used as a holistic framework, but it is cautioned that international law limits the diplomat employer's liability both in terms of the Bill of Rights and South African labour laws. The author shows that protection is afforded to diplomats/consular agents by international law. Moreover, the Diplomatic Immunities and Privileges Act (DIPA) of 2001 is discussed. It is submitted that employees are not prevented from taking legal action against a diplomat/consular employer in South Africa in terms of the Labour Relations Act (LRA) or the DIPA. The author suggests that diplomatic employees and employers should be made aware of their rights and obligations in this regard. In essence what really matters to any labour lawyer is how it can be justified that a group of vulnerable employees (diplomatic employees) is left without a remedy while the employer as the stronger bargaining party is protected in terms of international law. The author submits that employees should have access to compulsory private arbitration in terms of an amendment to the DIPA or in terms of a treaty. This must bind a diplomat/consular employer from South Africa (as the sending state) in a foreign state, and a foreign diplomat/consular employer in South Africa (as the receiving state) to protect employees. It is suggested that such a provision should be included in diplomatic contracts of employment after ratification of a treaty, even before it is enacted into relevant laws in South Africa. In view of the sensitivity and international consequences of labour disputes for states, it is suggested that private arbitration could serve as a useful dispute resolution procedure and an acceptable alternative to the general options available in terms of the CCMA, the labour court and the high court. It is suggested that the full protection of diplomatic employees' labour rights cannot be based on the status of their employers. Finally the author argues that lifting the veil of diplomatic immunity could provide a satisfactory interplay between labour law and international law to support the interests and rights of both parties to the diplomatic employment relationship.
Highlights
From time to time the media reports on diplomats residing in a foreign country, who are involved in a labour debacle about the unlawful treatment to their domestic employees in terms of the hours of over-time worked and related issues such as minimum wages or overtime-payment.[1]
Does the diplomatic immunity of foreign diplomats prevail over the protection afforded to diplomatic employees in South Africa? Can a national citizen or a person lawfully residing in South Africa as a foreigner, who is involved in an employment relationship with a foreign diplomat in South Africa, claim protection under the Basic Conditions of Employment Act (BCEA)[2] for breach of their rights relating to overtime work and payment? In other words, is the employee working at the diplomatic premises included in the definition of an "employee"[3] and entitled to legislative protection? Does international law extend immunity or privileges to diplomats in their role as employers if an employee decides to take legal action against that employer?
Another pertinent aspect concerning the topic of immunity is the principle of extraterritoriality extending sovereignty to the premises of the representing state. Is this principle applicable to labour matters or can it be regarded as a legal fiction? Can the residence of a diplomat, as a "workplace" where the "employment relationship" exists, be viewed as "foreign territory" within the borders of South Africa? If the principle of extraterritoriality applies, would it restrict or exclude the legal protection afforded to both South African and foreign nationals of the representing state who find themselves in such an employment relationship? Is diplomatic immunity extended to the premises of a diplomat on the basis that the law of the representing country applies
Summary
From time to time the media reports on diplomats residing in a foreign country, who are involved in a labour debacle about the unlawful treatment to their domestic employees in terms of the hours of over-time worked and related issues such as minimum wages or overtime-payment.[1]. Another pertinent aspect concerning the topic of immunity is the principle of extraterritoriality extending sovereignty to the premises of the representing state Is this principle applicable to labour matters or can it be regarded as a legal fiction? If the principle of extraterritoriality applies, would it restrict or exclude the legal protection afforded to both South African and foreign nationals of the representing state who find themselves in such an employment relationship? The interplay between the different sources of international law and labour law in South Africa are considered in order to determine the scope of the legislative protection provided to employees whose employment relationship at diplomatic premises might be affected by a veil of extraterritoriality or special privileges and immunity, against the jurisdiction of the courts and the Commission for Conciliation Mediation and Arbitration (CCMA)
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