Guaranteeing Freedoms through Collective Action: The Role of Collective Action in Protecting Non-Voting Migrant Workers

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On our continent, borders define rights and privileges. Migrant workers often find themselves in a precarious and vulnerable position – contributing to the economy of their host country but denied the fundamental right to participate in the political processes that shape their lives.

This exclusion from traditional forms of democratic engagement raises a crucial question: How can we ensure that the voices of migrant workers are heard, and their freedoms protected?

Migrant Workers Demographics

South Africa is home to approximately 4.2 million international migrants, a significant number of whom are migrant workers. This figure represents a significant portion of the 4.5 million migrants residing in Southern Africa, highlighting South Africa's role as a migration hub due to its economic opportunities and historical labour demands. While these workers contribute to the country’s economy, they often find themselves excluded from traditional political processes such as voting due to their non-citizen status. This exclusion raises important questions about the mechanisms available to safeguard their interests and ensure their developmental freedoms. To understand this issue, we can turn to the works of two prominent scholars, Amartya Sen and Martha Nussbaum, whose theories offer valuable insights into the protection of civil and political rights for non-voting populations.

 Theoretical Framework and Legal Foundations

Sen’s development as freedom theory provides a useful framework for addressing the civil and political rights of non-voting populations. Sen posits that development entails the expansion of freedoms that allow individuals to lead lives they value. However, for migrant workers, the inability to participate in political freedoms such as voting limits their ability to influence policies that directly affect their lives and livelihoods.

Nussbaum’s capabilities approach complements Sen’s theory by identifying a set of core capabilities that are essential for human flourishing. Nussbaum argues that the primary purpose of any nation’s constitution should be to secure for all “the prerequisites of a life worthy of human dignity – a core of capabilities – in areas of central importance to human life”. These capabilities include life, bodily health, bodily integrity, senses, imagination and thought, emotions, practical reason, affiliation, play,  and control over one’s environment.

As Stu Woolman notes in his book The Selfless Constitution (2003), the South African Constitution recognises “the right to dignity, a panoply of civil and political rights, a host of collective or community rights and a brace of socio-economic rights that serve the ends of both traditional and revolutionary forms of flourishing”(382). These rights align with Sen and Nussbaum’s conceptions of development and human flourishing.

While migrant workers in South Africa may be politically disenfranchised, their freedoms can still be protected and expanded through alternative forms of engagement such as labour legislation and collective action. Trade unions and collective bargaining serve as critical tools for self-governance within the workplace, offering a platform for expressing and negotiating the interests of migrant workers. All employees, regardless of their migrant status, are entitled to the protection afforded by South African labour legislation and the participation of rights vested in such legislation, such as collective action.

Collective Action as Political Expression

Participation in collective action, such as trade unionism, is a political freedom as fundamentally important as the right to vote. As Woolman argues, “[t]he revolutionary dimension ensures that out-groups … are able to challenge (as sub-publics) the dominant mode in which members of our polity see themselves and others. These counter-republics or sub-publics contain the seeds for growth and the means for change – for individuals and society alike” (400).

Collective action embodies the essence of democratic participation and self-governance, extending beyond the ballot box to everyday interactions and decisions that affect workers’ lives. It represents a direct form of democracy that often results in immediate and tangible improvements in standards of living and working conditions. In contexts where political participation through voting is unavailable or restricted, collective action serves as an essential alternative platform for exercising political influence and securing developmental freedoms.

“It is our collective responsibility to create an environment that enables all individuals, including migrant workers, to flourish and lead lives they have reason to value”.

Ensuring the right to participate in collective actions like trade unionism is not just about protecting an alternative political outlet; it is about affirming the democratic principle that all people, regardless of their voting status, have the right to influence their living and working conditions. This broader conception of political participation is crucial for a truly inclusive and responsive democratic society.

The importance of collective action in promoting human flourishing is further highlighted by Nussbaum’s emphasis on the capability of affiliation. Affiliation is described as the ability “to live with and toward others, to recognize and show concern for other human beings, to engage in various forms of social interaction; to be able to imagine the situation of another and to have compassion for that situation; to have the capability for both justice and friendship”. Collective action, such as trade unionism, provides a platform for migrant workers to engage in social interaction, show concern for their fellow workers, and advocate for justice in the workplace.

Moreover, collective action can help address other core capabilities identified by Nussbaum, such as bodily health and control over one’s environment. Through collective bargaining, trade unions can negotiate for better working conditions, safety measures, and access to healthcare, thus promoting the bodily health of migrant workers. Additionally, by participating in collective action, migrant workers can assert greater control over their working environment and influence decisions that affect their lives.

International and national labour regulations play a vital role in enabling collective actions by workers, which is essential for achieving the development goals outlined by Sen and Nussbaum. These legal frameworks offer the necessary institutional backing that allows migrant workers to assert their collective action rights and have a say in determining the conditions under which they work. Indeed, the journey from the oppressive and dehumanizing apartheid-era policies to the socially democratic or egalitarian pluralistic system envisioned by South Africa’s Constitution is not a linear one, and the concept of remedial equilibration acknowledges this reality.

Section 23(2) of the Constitution of the Republic of South Africa, 1996 declares that “[e]very worker has the right (a) to form and join a trade union; (b) to participate in the activities and programmes of a trade union; and (c) to strike”. So too, section 18 provides that “[e]veryone has the right to freedom of association. However, it is important to acknowledge that the effectiveness of collective action in protecting the rights of migrant workers requires further consideration. Although undocumented migrants are formally protected by labour law including the right to participate in collective action, the fear of arrest and deportation can significantly deter them from exercising these rights in practice.

Joining a trade union or participating in strikes or protests, can increase the visibility of these workers, potentially exposing them to immigration authorities. Moreover, some employers may take advantage of the vulnerability of undocumented workers by threatening to report them to immigration authorities if they engage in collective action or complain about unfair working conditions. This fear of retaliation can further suppress the willingness of undocumented workers to assert their rights and participate in collective action.

 Challenges and Solutions

The power imbalance between undocumented workers and their employers is significant. Undocumented workers may feel that they have no choice but to endure unfair or abusive working conditions, as the alternative could be losing their job and facing deportation. This fear can effectively prevent them from exercising their rights to collective action, even though they are formally protected by labour law.

To address this issue, it is crucial to ensure that labour law enforcement mechanisms prioritise the protection of workers’ rights, regardless of their immigration status. Establishing a  balance between labour law enforcement and immigration enforcement could help reduce the fear of deportation and encourage undocumented workers to assert their rights and participate in collective action when necessary. Such an approach must prioritise the protection of workers' rights while also recognising the legitimate role of immigration law.

Conclusion

In conclusion, while the political disenfranchisement of migrant workers poses a substantial challenge, their freedoms can still be protected and expanded through alternative forms of engagement such as labour legislation and collective action. By empowering migrant workers through collective action, these workers are able to participate actively in shaping their working conditions, thus enhancing their capabilities and overall quality of life. The protection of civil and political rights for non-voting entities can be achieved through institutional support for collective action, thereby contributing to a more inclusive and equitable development process in line with Sen and Nussbaum’s theories of development and human flourishing. As Woolman reminds us in The Selfless Constitution “[f]lourishing requires us to pay particular attention to the unchosen conditions of flourishing as well as the real space in which conditioned choice obtains”. It is our collective responsibility to create an environment that enables all individuals, including migrant workers, to flourish and lead lives they have reason to value.