The Basic Conditions of Employment Act and the Labour Relations Act now apply to domestic workers. As always, ignorance of the law is no excuse if you are challenged on your employment practices, so it's vital to acquaint yourself with your obligations and to ensure that the people who look after your home or your family get recognition for their efforts.
It is no longer sufficient to have a verbal agreement with your domestic worker, even if he or she has been working for you without a hiccup for the past 10 years. Not before time, pressure on the government to bring domestic workers into the protective net provided for other employees has borne fruit.
The result is that the most important employment laws, namely the Basic Conditions of Employment Act and the Labour Relations Act, now apply to domestic workers. In practice, according to Michelle Huber and Philip Sack, the authors of the book Employing a domestic worker (Metz Press), this means that:
- The terms and conditions of your employment relationship are no longer simply a matter of mutual agreement between you and your domestic worker;
- You will have to comply with all the rules and standards set by legislation; and
- If you do not comply with these laws, penalties may be imposed.
The Basic Conditions of Employment Act deals with hours of work, leave, and meal breaks. The Labour Relations Act governs aspects such as recruitment, selection, disciplinary action and dismissal.
In addition, the discrimination sections of the Employment Equity Act and the Skills Development Act apply to domestic workers, preventing you from unfairly discriminating against your domestic worker or anyone who applies for the job you advertise.
Until September 1, 2002, it was not legally necessary to have a written employment contract with your domestic worker. That has changed in terms of the new provisions of the Basic Conditions of Employment Act relating specifically to domestic workers.
Now you are obliged to have a written contract in which you include your full name and address as the employer, the name of the domestic worker, a brief description of the work for which he or she is employed, the date on which employment began, the wage or salary and frequency of payment, the domestic worker's ordinary hours of work and days of work, the leave he or she is entitled to and the notice period to signal the end of employment.
There is an obligation on you, the employer, to explain the contents of the contract to your domestic worker if he or she is unable to understand the written particulars. You must also keep a copy of the contract while your domestic worker is employed and for three years after he or she has left your employ.
New legislation (called the Sectoral Determination for Domestic Workers) covers wages and conditions of employment for domestic workers. For the first time, a minimum wage has been set down in law for people employed in this sector. The minimum wage is the least you can legally pay your domestic worker.
If you are paying more than the minimum, the legislation does not entitle you to reduce wages to the minimum level. In fact, Labour Minister Membathisi Mdladlana has warned that employers who do this will be contravening the Basic Conditions of Employment Act and the Labour Relations Act. Thus, your domestic worker would be within his or her rights to bring a complaint against you before the Commission for Conciliation, Mediation and Arbitration.
The minimum wage is based on an hourly rate and the area in which a domestic worker works.
- A domestic worker who works more than 27 hours a week should earn a minimum of R4.10 an hour if he or she works in a predominantly urban area (referred to in the legislation as area A). Those who work in rural areas that fall outside the stipulated municipal boundaries (referred to as area B in the legislation), are entitled to a minimum wage of R3.33 an hour.
- For domestic workers working 27 hours or less a week in predominantly urban areas (area A), the hourly minimum is R4.51 and R3.66 in rural areas (area B).
But you can be flexible; the government does not expect you to pay more than you can afford. So, if you live in an urban area such as Durban, Johannesburg or Cape Town and you cannot pay the minimum wage of R800 a month for a 45-hour week, you can reduce your worker's working hours. The salary for workers in rural areas - again, based on a 45-hour week - is R650.
The average monthly rate for domestic workers working 27 ordinary hours or less, is R527.67 for urban workers and R428.22 for rural domestic workers based on a 27-hour week.
Every domestic worker must be granted a wage increase of at least eight percent on November 1, 2003 and on November 1, 2004, irrespective of whether they are receiving the stipulated minimum wage. If the annual increase in the inflation rate, as measured by the Consumer Price Index (CPI) reported by Statistics South Africa, rises to 10 percent or higher, the stipulated increases will be adjusted, obliging employers to pay domestic workers an increase equivalent to the increase in CPI. Any wage increase in excess of eight percent will have to be published in the Government Gazette as an amendment to the Sectoral Determination for Domestic Workers.
The law also states that you must pay your domestic worker either daily, weekly, fortnightly or monthly on a regular day agreed to by the domestic worker.
The method of payment can be agreed upon between employer and employee, but payment must be made from the workplace during office hours and a payslip must be issued.
The payslip, of which you must keep a copy for three years, must include the following information: the worker's name and occupation, the period for which payment is being made, the wage and overtime rates, ordinary hours worked, the full wage, details of any other pay arising from the domestic worker's employment, details of any deductions, and the actual amount paid to the worker.
You may not withhold payment from a domestic worker for training, the supply of work equipment or tools or work clothing. You may also not deduct the cost of breakages or any meals provided during work.
You may not make any deductions from your domestic worker's wages except for periods of absence from work, excluding paid leave. You may not deduct more than 10 percent of the wage for accommodation and such accommodation must be of a minimum standard and must be weatherproof and generally kept in good condition. It must have at least one window and door, which can be locked, and it must have a toilet and a bath or shower if the domestic worker does not have access to any other bathroom.
With your domestic worker's written consent, you may make deductions for medical insurance, savings, provident or pension fund contributions, subscriptions to a registered trade union, repayment of housing loans to a bank or the payment of rent.
Should you make a loan to your domestic worker, you may not deduct loan repayments at a rate greater than 10 percent of his or her wage.
The Sectoral Determination for Domestic Workers stipulates conditions such as rest periods, night work, standby time, meal intervals, Sunday and public holiday work.
Domestic workers are allowed to work a maximum of 45 ordinary hours a week and nine hours on any single day if they work for five days or less in a week; or eight hours in any single day if they work more than five days in any week.
Overtime must be paid at one-and-a-half times the hourly rate or you may give your domestic worker paid time off instead of paying for overtime worked.
Payment for work on Sundays depends on whether it is routine or exceptional. If Sunday work is part of your employee's ordinary hours of work, he or she must get at least one-and-a-half times her hourly wage for each hour worked. For working Sundays or public holidays outside of the normal routine, the rate must be at least double the ordinary hourly rate.
When a public holiday falls on a working day for your domestic worker, he or she is not expected to work, and you are obliged to pay the daily wage. If you require your employee to work on a public holiday, and that holiday falls on what would normally be a non-working day, you must pay double the daily wage.
The minimum period of paid leave to which domestic workers are entitled is three weeks for every year worked. This can also be calculated as one day off for every 17 days worked or one hour off for every 17 hours worked.
When your employee's paid leave includes a public holiday on a day on which she ordinarily would have worked, you must grant an additional day's leave.
Domestic workers are entitled to paid sick leave, family responsibility leave and maternity leave every year. They are entitled to paid sick leave equal to the number of days they normally work during a period of six weeks. The sick leave cycle runs over three years, so, for instance, if your domestic worker normally works Mondays to Fridays, he or she would be entitled to 10 days sick leave a year. Domestic workers in their first six months of work are entitled to one day of paid sick leave for every 26 days worked. All domestic workers are also entitled to five days family responsibility leave in a year, during which time they must be paid, and to four consecutive months of unpaid maternity leave.
The government plans to include domestic workers in the Unemployment Insurance Fund (UIF) from April 1.
The findings of a task team, appointed by Labour Minister Membathisi Mdladlana, were presented to the portfolio committee on labour in November last year. These findings recommended changes to the law governing unemployment insurance to deal with anomalies in applying the law to domestic workers. The changes include:
- Domestic workers with multiple employers will be considered unemployed and eligible for benefits when their income falls below a certain level which is based on the full UIF benefit for which the worker could apply. The UIF benefit they receive will depend of the percentage of lost income;
- Allowing employers of domestic workers to pay contributions every three months and in arrears; and
- Paying benefits to domestic workers who lose their jobs because of the death of their employer.
Where domestic workers work for more than one employer, each employer will pay two percent of the wages paid to the domestic worker to the UIF. One percent should be deducted from the worker's wages and the other one percent must be paid by the employer. So, a domestic worker earning R800 a month will be required to pay R8 a month to the UIF and, as her employer, you will have to pay R8 to the fund as well.
Domestic workers are not the only employees who have to pay UIF contributions. Under the Unemployment Insurance Act, all income earners are obliged to pay one percent of their salaries into the UIF and employers are required to match the amount. Anybody earning more than R97 188 a year (or R8 099 a month) is deemed to earn only R97 188 and contributions are based on this amount.
A key issue addressed by the task team was the collection of contributions. The task team recommended that the onus should fall on employers to make contributions for domestic workers. Contributions should be made on a three-monthly basis through direct deposits into the UIF bank account or through direct payment to the UIF. There is nothing stopping you from paying the contributions for, say, six months or a year, upfront, to avoid the administrative nuisance of making payments every three months. But bear in mind that you cannot pay for more than three months' contributions in arrears.
Contributors to UIF qualify for benefits based on the credit days that they have accumulated with the fund. For every six days in employment, the contributor earns one credit day. It is possible for a contributor to qualify for benefits after having worked for a week. Contributors must apply for benefits within six months of losing their jobs.
UIF benefits are paid out on a graduated benefit scale ranging from 58 percent of income lost for low-income earners, to 38 percent for middle- and high-income earners. Domestic workers earning R800 a month would qualify for unemployment benefits of R428 (54 percent of R800) a month, and those earning R1 200 a month qualify for R614 (51 percent of R1 200). Low-income earners are classified as those who earn less than R230 a month and qualify for the highest benefit of 58 percent of income lost.
Once a domestic worker qualifies for benefits he or she will be able to claim UIF benefits when they are unemployed or partially unemployed. In the case of partial unemployment, domestic workers will be able to access unemployment benefits once their salary falls below the benefit level that they would have received if they were wholly unemployed. Unemployment benefits are paid for a maximum period of 34 weeks.
Other benefits paid out by UIF include maternity benefits, illness benefits, adoption benefits and death benefits. The amount of these benefits also depends on the salary earned by the domestic worker. A domestic worker earning R800 a month qualifies for a monthly maternity or ill-health benefit of R464 (54 percent R800) and a domestic worker who earns R1 200 a month qualifies for R696 (51 percent of R1 200).
Maternity benefits are paid for 17.32 weeks, after which a domestic worker can access unemployment benefits for a further 34 weeks if she loses her job due to the actions of her employer.
Domestic workers do not qualify for unemployment benefits if they resign.
The law requires that all UIF contributors who wish to apply for maternity benefits must apply at least eight weeks before childbirth or six months after the date of the birth of the baby.
To claim for illness benefits, contributors must be unemployed due to illness and must be receiving less than 100 percent of their normal earnings from their employers. To qualify for the illness benefit, contributors must be ill for more than 14 days and can receive illness benefits for a maximum of 34 weeks.
You do not have to wait until April 1 to register your domestic worker for UIF. In fact, you are encouraged to get a registration form from any of the 125 labour centres around the country as soon as possible. Fill in the form and return it to the centre.
Nora Juries, the general secretary of the South African Domestic and General Workers' Union in the Western Cape, welcomes the introduction of a minimum wage for domestic workers because it provides a framework for employers. But she says the union is not happy with the level of minimum wages. "We recommend that employers pay their domestic workers R10 an hour or R1 200 a month. Nobody can survive on R800 a month."
Furthermore, Juries believes there should be no wage discrimination based on geographic area. All domestic workers should get R10 an hour, she says, irrespective of whether they work in rural, semi-rural or urban areas, because they do the same work.
Snuki Zikalala, a spokesperson for the Department of Labour, agrees domestic workers in rural and urban areas do the same type of work, but the Department of Labour had to be mindful of the affect of setting a single minimum wage without considering the ability of employers in rural areas to pay their domestic workers that minimum wage.
All employers of domestic workers are obliged to keep a copy of the new legislation (Sectoral Determination for Dometic Workers), or an official summary, in the workplace, where the domestic worker has access to it.
Visit the Department of Labour's website at www.labour.gov.za to get a copy. You can also get useful documents such as a certificate of service, payslips and employment contracts off the site.
For more information, phone the Department of Labour's toll free number 0803 0944 44 or a Labour Centre in Cape Town on (021) 460 5911; Johannesburg on (011) 497 3000; or Durban on (031) 336 1500.
This article was first published in Personal Finance magazine, 1st Quarter 2003. See what's in our latest issue