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SarWatch Writer
HIGH-LEVEL CONSULTATIVE MEETING ON UNCLAIMED BENEFITS IN THE SADC REGION

Introduction and background:

The issue of unclaimed benefits is a serious issue facing migrant workers throughout the world. At the end of their employment contracts, migrant workers often struggle to access their social security benefits. Sometimes they lack adequate documentation to claim what is due to them.

In Southern Africa, the situation is far more acute because of the movement of people from Southern Africa Development Community (SADC) countries such as Botswana, Lesotho, Malawi, Mozambique, Eswatini, Zimbabwe, and to some extent Zambia who migrated to South Africa to work in the mines, and especially the goldmines. For generations, these migrant mineworkers have contributed to the socio-economic development of South Africa. The circular migration in Southern Africa is not likely to come to an end any time soon. Many of these migrant mineworkers have not been paid their social security benefits which remain with social security funds and investment schemes.

Concerned about the problem of unpaid benefits, on December 2020 the Southern Africa Resource Watch (SARW) commissioned a study to identify the challenges faced by mineworkers (particularly migrant mineworkers) and their families in claiming their social security benefits. The study resulted in several important findings. First, it found that there exist more than a thousand funds (1 275 funds or administrators that have information regarding the unclaimed benefits) with 4 million beneficiaries, holding more than R42 billion in assets. Second, it pointed to the fact that some of these funds are no longer operational and some of the beneficiaries are no longer trying to claim their monies (sometimes because it is too little to bother about). Third, it identified that the majority of the beneficiaries are from the metal industries and the mining sector.

Problem statement:

South Africa receives the most migrant workers in the SADC region. South Africa’s constitution guarantees the right to social security, but migrant mineworkers face serious challenges in accessing their social security. The challenges include the fragmented nature of the social security framework; the non-availability of information; the incapacity of most claimants to lay claims due to geographical barriers; and a non-existent social security adjudication system, which means that migrant workers are normally left with a lack of redress when their contracts of employment reach an end. There are obstacles also in the sending countries. Lesotho and Eswatini, for example, are major migrant-sending countries, but they do not have provisions in their constitutions that specifically deal with the right to social security. Migrant-sending countries do not take adequate initiatives to guarantee and protect their citizens who work in South Africa, and provide no support for them to access their social security benefits in South Africa.
Another general problem that has been identified as a challenge to the portability of social security benefits is the lack of statistics on migrant workers moving in and out of South Africa. Other problems that hinder the social protection of migrants include overly strict immigration law regimes, and explicit and implicit forms of nationality discrimination in labour and social security laws and state practices. Another problem is the failure to introduce sound return and reintegration mechanisms for workers.

For years now, the question of social security benefits of migrant workers and their portability has been on the table for discussion between SADC countries, but no sustainable solution has been found. Millions of unclaimed social security benefits are reported each year by social security funds and schemes in South Africa. Unclaimed benefits are benefits that cannot be paid. Recent changes to the Pension Funds Act in South Africa have made it possible for these benefits to be transferred from the employer fund to an unclaimed benefits fund. Unclaimed benefits are currently housed in registered active funds or unclaimed benefit funds. It is important to note that 81 per cent of the unclaimed benefits are currently housed in registered funds that are active, and only 19 percent lies in
unclaimed benefit funds. The total unclaimed benefits amount to 1.8 percent of the total assets of retirement funds. The issue is widespread in the retirement fund industry across South Africa, with 2 635 retirement funds operating.

There has been increased awareness at national, regional and continental levels of the challenges posed by unclaimed benefits. At the SADC and country levels, a number of actions have been taken to protect migrant mineworkers. For example, the SADC Declaration on Tuberculosis (TB) in the Mining Sector (2012) was followed by the Framework for Harmonized Management of TB (2014) and the SADC Code of Conduct on TB in the Mining Sector (2015). These documents are the basis for the TB in the Mining Sector in Southern Africa (TIMS) programme. TIMS is an effort to form a regional coordinated response to the issue of tuberculosis and related illnesses among mineworkers, ex-mineworkers, and their families and communities. TIMS also links migration, health, and social protection. Concerning the unclaimed benefits from different social security funds and compensation schemes, SADC countries undertook a series of dialogues and some rapid studies to understand the challenges, looking at policy, legal, institutional, and operational challenges in addressing social security benefits. SADC has a draft regional policy framework on the portability of social benefits agreed upon in Tanzania in May 2016.

SADC has also, through its tripartite mechanisms and consultative structures, introduced a host of policies and strategic responses. These include the SADC Protocol on Employment and Labour; the SADC Labour Migration Policy Framework and an associated Action Plan; and the adoption of the Code on Social Security in SADC. SADC has approved the Code on Social Security whose core principles should be contained in national laws of member states and bilateral or multilateral arrangements between member states. The Code on Social Security, which is non-binding on member states, aims at facilitating the exportability of benefits, including the payment of benefits in the host country. Migrant workers should also be able to participate and enjoy equal treatment as citizens from the social protection schemes of the host country. At the continental level, the African Union has set up the AU Migration Policy Framework to address some of these issues.

Despite these positive developments, cross-border portability arrangements remain limited or (in most cases) absent. There is still a lot that needs to be done, including the establishment of appropriate bilateral, and multilateral arrangements that have either been absent or seriously underdeveloped. There is an urgent need, therefore, for SADC nations to resolve this issue of unpaid benefits and related problems. Research by SARW has suggested a number of steps that SADC needs to take:

• First, a regional approach is needed to social security and portability. There must be an agreement among SADC countries aimed at guaranteeing social protection for all migrant workers in the region. SADC nations must draw up and conclude social security agreements to ensure that migrant mineworkers are able to access their social benefits.
• Second, there is a need for migrant-sending countries to come up with initiatives to lessen the burden on migrant-receiving countries in the social security domain.
• Third, the mining sector should have mining-specific agreements that specifically deal with issues related to migrant mineworkers.
• Fourth, there is a need to develop a database to keep track of all migrant workers, retired and otherwise.
• Fifth, migrant workers who seek redress regarding challenges faced in accessing their unclaimed or unpaid social security benefits must be provided with comprehensive protection by the courts of law. This means that an adjudication system should be established to deal with social security grievances so that those seeking redress have adequate legal support.

Given the challenges faced by mineworkers in each SADC country and within South African borders to access various social benefits that they are entitled to (or that have accrued to them while working in South African mines), it is important to map out an inclusive approach and propose adequate solutions to the problem of unclaimed benefits. There is a need for collective actions to ensure that
migrant mineworkers’ rights are protected in both the host and the sending countries, especially the right to assess their social benefits.

Proposed intervention:

A high-level consultative meeting will be convened to answer the following questions:

• What are the available instruments guiding the portability of accrued social security benefits in the SADC region? How are they coordinated and harmonised, and how effective are they?
• What innovative initiatives could SADC come up with to unlock social security benefits in the region?
• What initiatives should be taken to compensate miners and ex-miners affected by occupational lung diseases (OLD) and occupational injuries – injuries on duty (IODs)?
• How can regional policy on the portability of social benefits be finalised and adopted?

Goal and objectives:

The goal of the high-level consultative meeting is to unlock the social benefits due to migrant mineworkers in the SADC region.
Specific objectives will include:

• to provide for the coordination of social security benefits systems to ensure that workers moving within the SADC region can maintain their social security rights which they have acquired under the legislation of two or more member states, or enjoy corresponding rights under the legislation of another member state;
• to make provision for equal treatment of all nationals and migrant workers under the social security legislation of member states;
• to establish rules and guidelines for determining the applicable legislation governing the rights of social security of a worker at any given point in time to avoid conflict of laws;
• to call for arrangements for aggregation of insurance periods completed under the legislation of the member states to determine the right to receive a benefit;
• to advocate for broader portability of benefits and payment of benefits abroad, and contribute to the improvement of the cross-border payment of social security benefits in the SADC region;
• to assess, review and propose initiatives to unlock social security benefits in the region, such as initiatives taken to compensate ex-miners and miners in the region, focusing on occupational lung diseases (OLD) and injuries on duty (IODs).
• to develop advocacy activities to support the drafting and adaptation of a regional policy on portability of social benefits;
• to develop a clear plan of action to resolve or minimise the problems migrant mineworkers face when trying to access their social security benefits, which includes assessing the implementation of the SADC draft policy on portability of social benefits.

The sessions will be live-streamed on SARW’s Facebook page here.

 

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