The CCMA's Jurisdiction Over Illegal Workers

From the point of departure, it is essential to acknowledge that the CCMA is a creature of statute, and jurisdiction will be limited to the powers given to the presiding Commissioner by the Labour Relations Act (LRA), the Basic Conditions of Employment Act (BCEA), or the Employment Equity Act (EEA). The CCMA cannot grant or deprive themselves of the jurisdiction that was initially afforded. Since the jurisdiction of the CCMA is limited, the CCMA are regularly confronted with questions of whether some issues fall within their jurisdiction.

When confronted by circumstances where an employee's work is illegal, or the worker is illegally in South Africa, and legislation prohibits the work or the employee from being employed by a company, the presiding Commissioner must determine if they can proceed with the matter. It will then be the difficult task of the Commissioner to determine if the contract of employment is valid and enforceable. If there is no valid employment