domestic workers: decent work for all â south africa - Solidar

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In practice, the instrument must strive to elevate domestic work to a professional level and give workers in this sector access to social security, including maternity benefits. It should build on national regulatory innovations in law and practice that reflect the specificity of domestic work while taking into account the particular vulnerability of domestic workers, including age and migration status, and identify appropriate standards. 17 Given the significance of deeply rooted informal practices that disadvantage domestic workers in their employment relationship, the proposed instrument needs to offer sufficient guidance to ILO Members to ensure that coverage is real rather than just a commitment on paper. 2. Wages and conditions of domestic workers in South Africa Since 1994 domestic workers in South Africa have become subject to the same legislative provisions that are applicable to all employees. Most important among these are the Labour Relations Act (LRA), 18 providing (among other things) for protection against unfair dismissal and the right to organise and strike, the Basic Conditions of Employment Act (BCEA), 19 laying down minimum working conditions for employees in the workplace, the Employment Equity Act (EEA) 20 , protecting all employees against unfair discrimination, and the Skills Development Act (SDA), 21 creating a framework for improving the skills of South African workers on a sectoral basis. As in many other countries, however, these laws are mainly directed at the conditions of workers in ―standard‖ (full-time, indefinite) employment in formal workplaces or organised sectors and in many ways fail to address the problems that domestic workers face. As a result, Sectoral Determination 7 (SD7)22 was promulgated in 2002 to provide specifically for this sector. Minimum conditions of employment The most prominent feature of SD7 is that it set minimum wages for the domestic worker sector, which had not been done before. Notably, SD7 prescribed different wages depending on the area where the worker works and the number of hours worked per week. The areas are split according to municipal boundaries into ―area A‖, consisting of the listed metropolitan areas, and ―area B‖ covering the rest of the country. As at 2010, the minimum wage for area A was set at R1,442.86 (approx. US$197) for those working more than 27 ordinary hours per week and R1,022.17 (approx. US$140) for those working 27 ordinary hours per week or less or in both cases, by agreement, a prescribed minimum hourly rate for the number of hours worked. For area B, the minimum wage was R1,191.78 (approx. US$163) for those working more than 27 ordinary hours per week, and R844.90 (approx. US$115) for those working 27 ordinary hours per week or less, or the relevant hourly rate 23 . According to SD7, the prescribed wage must furthermore increase by 8% annually and, should the inflation rate be higher than 10%, the Department of Labour (DoL) will adjust the rate of the wage increase 24 . Coupled with the prescribed minimum wages are the minimum working conditions afforded to domestic workers in terms of SD7, which include: • Working hours per week (a maximum of 45 ordinary hours plus 15 hours overtime) 25 ; • Calculation of overtime pay (at least one-and-a-half times the ordinary rate) 26 ; • Written information concerning pay 27 ; 17 The ILO Report (n 1) pars 94 – 96; Manual for domestic workers organising for a better future 2007 Committee for Asian Women (CAW). 18 Act 66 of 1995. 19 Act 75 of 1997. 20 Act 55 of 1998. 21 Act 97 of 1998. 22 GNR.1068 of 15 August 2002: Sectoral Determination 7: Domestic Worker Sector, South Africa. 23 GNR 737 dated 17 July 2009 24 Clause 3 of Sectoral Determination7, supra 25 Clauses 10-12 of Sectoral Determination7, supra 26 Clause 17 of Sectoral Determination7, supra 27 Clause 9 of Sectoral Determination7, supra GLOBAL NETWORK 6
• Provisions for paid leave (at least three weeks’ annual leave, sick leave, five days’ family responsibility leave and four months’ unpaid maternity leave) 28 ; • Prohibition of child labour and forced labour 29 ; and • Termination of employment 30 . Protection of basic rights Other legislative provisions covering domestic workers, as noted already, include protection against unfair labour practices, 31 unfair dismissal 32 and unfair discrimination. 33 In a number of cases, especially after termination of employment, domestic workers have been able to enforce their rights in terms of these statutes. 34 In Ndlovu v Pather, 35 for example, the applicant had been dismissed because she was pregnant and needed to attend a clinic for regular checkups. Her employer alleged that she had resigned. The Labour Court held that it was improbable that she (the domestic worker) had wanted to resign as she was in dire financial straits and needed to work for as long as possible. The outcome of the case was in the worker’s favour. The court found that she had been dismissed for reasons relating to her pregnancy, amounting to an automatic unfair dismissal in terms of section 187 of the LRA, and she was awarded 20 months’ remuneration as compensation. The combined effect of the LRA and the EEA, therefore, is that an employer may not prevent a pregnant woman from entering the labour market, may not disadvantage her during the existence of the employment relationship and may not prematurely terminate her employment owing to her pregnancy and/or family responsibilities. The question, however, is the extent to which rights such as these are upheld in practice. Social assistance Social protection is available to domestic workers in the form of social assistance measures and social insurance measures. 36 In terms of the Social Assistance Act 37 basic relief is available to everyone, including domestic workers, provided they qualify in terms of the means test applicable to all applicants. 38 These measures consist of the following: • a child support grant; • a care dependency grant (available to persons caring for children with special needs); • a foster child grant; • a disability grant; • an older person’s grant; • a war veteran’s grant; and • a grant-in-aid (available to persons who require regular care). 28 Clauses 19-22 of Sectoral Determination7, supra 29 Clause 23 of Sectoral Determination7, supra 30 Clauses 24-30 of Sectoral Determination7, supra 31 Sections 185-186 of the LRA. 32 Sections 185-195 of the LRA. 33 Section 6 of the EEA. 34 Disputes referred by domestic workers accounted for 12,1% of all employment disputes referred to the Commission for Conciliation, Mediation and Arbitration (CCMA) during 2003—2005: I. Macun, D. Lopes and P. Benjamin: An analysis of Commission for Conciliation Mediation and Arbitration Awards, Development Policy Research Unit, Working Paper 08/134 (University of Cape Town, 2008), p. 15. 35 (2006) 27 ILJ 2671 (LC). 36 The distinction between ―social assistance‖ and ―social insurance‖ is that the former consists of basic benefits financed by the state while the latter consists of benefits funded jointly by contributions from employers and employees. 37 Act 13 of 2004. 38 The means tests are set out in Annexures A, B, C and D of the Regulations relating to the application for and payment of social assistance and the requirements or conditions in respect of eligibility for social assistance (GNR.898 of 22 August 2008: Government Gazette No. 31356). GLOBAL NETWORK 7
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