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Domestic Workers- Did You Know? An Overview...

DOMESTIC WORKERS – DID YOU KNOW? AN OVERVIEW..  

Although the relationship between employers of domestic workers and their employees is very special and solely built on trust and integrity most of us are unaware of the legalities that crept in during the past couple of years.
 
Examples of these regulatory measures that we regard as interferences into this special relationship are;  
  • UIF legislation,  
  • Minimum wages,  
  • Basic conditions of employment,
  • Employment Equity Act,  
  • Access to the CCMA. 
This does not seem very important or serious but through our articles we will endeavor to dissect the risks of these pieces of legislation and to offer solutions to challenges employers may face.  

In our discussions we will try and avoid legal jargon and just address the implications however readers must please bear with me when I quote legislation and even case law since it is only done to offer proper explain and to remove the vast amounts of myths that exist in this industry.
   
Basic Conditions of Employment.
In terms of the Basic Conditions of Employment Act Sectoral Determination 7 was established to regulate the conditions of employment and minimum wages for employees in the Domestic Worker Sector in South Africa. 

Important to note that the Sectoral Determination applies to all employers and employees in the entire Republic of South Africa and that all conditions of employment are the same for every employee except for the minimum wages which are divided into an Area A and an Area B.  
 
  • Minimum Wages
All areas not specified in Area “A” falls under Area B and it is the responsibility of every employer to ascertain under what area they fall.   
Every year the Minister of Labour promulgates amendments to the basic conditions and minimum wages and generally the effective date of these amendments are 01 December each year.  

Increases are recently expressed in old minimum wage + CPI + a % as determined by the Minister.  
 
  • Other Conditions of Employment
The sectoral determination also contains a list of other conditions of employment such as;
  •  Application
  • Wages
  • Particulars of Employment
  • Hours of Work
  • Leave
  • Prohibition of Child Labour and Forced Labour
  • Termination of Employment  
In this bulletin we will briefly look at each of these sections and discussion of the detail will be done in the bulletins to follow.   
 
PLEASE NOTE – You are more than welcome to visit our website www.edomestix.co.za and either on our Blog Page or the Contact Us Page, submit you enquiry or alternatively contact our Call Centre 071 147 1213 and ask to speak to a consultant. 
 
  • Application
The determination applies to the employment of all domestic workers including domestic workers employed or supplied by employment services as well as domestic workers employed as independent contractors.
  
It does not apply to domestic workers employed on farms and employees and employers covered by an agreement of a bargaining council in terms of the Labour Relations Act, 1995.  
 
  • Wages
Important to note that minimum wage determinations apply to employees working less than 27 hours per week as well as more than 27 hours per week AS WELL AS employees working less than 4 hours per day.   
 
Our Edomestix wage and time keeping system provides monthly pays lips and also goes further to maintain leave records to ensure correctness of the leave balances.
 
The section deals further with the calculation of wages, the payment of wages as well as the issue of providing pay slips to the employee and deductions that are legitimate.   
 
  • Particulars of Employment
This section deals with the requirement that an employee should be provided with a document containing at least very specific information regarding the working relationship and conditions and benefits.  
A very important provision although difficult to comply with is the requirement that if a domestic worker is not able to understand the written particulars, the employer must ensure that they are explained to the domestic worker in a language and in a manner that the domestic worker understands. 
 
In this regard Edomestix provides pre-recorded translations to assist employers to comply with this requirement.  

 

  • Hours of Work
This section deals with an employee’s hours of work, what is regarded as overtime and the payment for overtime. Nobody can work an entire shift without rest periods and this section also determines rest periods, lunch times and when an employee works hours in excess of the normal hours and how should overtime be remunerated.  
Then a piece of legislation that is unfamiliar to domestic worker relations namely working on Sundays and Public Holidays. In the past very little attention was given to domestic workers who worked on Sundays and public holidays since that was the time that the family would gather and the assistance of our domestic workers was nonnegotiable but with the introduction of the sectorial determination this changed drastically.   
 
Since this section deals with hours of work and remuneration it forms the basis of calculation of remuneration and is one of the aspects that are very easy to measure and to also to attack during a dispute. It goes back to the contract of employment and the onus of proof lies square on the shoulders of the employer.  In this regard Edomestix provides proper contract of employment and time keeping system. 

 

  •  Leave
There are many misconceptions regarding the accrual of annual leave, granting of sick leave and when does an employee qualify for family responsibility leave and then maternity leave and the questions of how much must I pay my employee during maternity leave if anything and the related issue of UIF, registration for UIF and arrears UIF contributions
 
In this regard Edomestix provides a leave management system to manage all leave types and an Employer Portal to easily manage leave and absenteeism through our unique mobile App at your fingertips. 

 

  • Termination of Employment
One of the most neglected clauses and conditions in a contract of employment and one that is very lightly applied by employees when they want to leave the employment relationship are now much more formalized. It is supposed to create a lot more structure when the employment relationship is terminated but it is a general fact that very few employees apply this condition.  
 
The notice periods are there to assist employers to prepare for the recruitment of a new replacement but employees in general disregard this responsibility and quite at any time leaving the employer with serious predicament. Currently the non-compliance with this clause also give rise to most of the cases at the CCMA where employers do not insist on written resignations or do not properly follow up when employees abscond and then only to find themselves to defend allegations of unfair dismissals. Unfortunately in 99% of the cases left with a substantial settlement at the CCMA or even worse a substantial award to be paid to the ex-employee.
 
We will also discuss termination due to operational requirements, dismissals for misconduct and poor performance as well as severance pay and the issuing of certificates of service.
  
Dedicated Bulletins contain more information on this matter and how to avoid being caught in this situation. 

 

  • When must a Domestic Worker Retire
Another mine field and a question with no clear definite answer save to say that the Basic Conditions of Employment Act and the Sectoral Determination 7 are silent on this matter.  
Chapter 2 of the Employment Equity Act in particular Section 6 makes it an offence where the employee can proof that the employer unfairly discriminated against the employee on the basis of amongst other things the age of the employee. Dedicated Bulletins contain more information on this matter and how to avoid being caught in this situation. 

Furthermore section 187 (1)(f) of the Labour Relations Act states clearly that the dismissal of an employee based on his or her age will be automatically unfair and such a dispute will be dealt with by the Labour Court and up to 24 months of the employee’s remuneration may be awarded as compensation.  
Now although we find an answer to this question in section 187 (2) (b) of the Labour relations Act this answer poses new challenges. The particular section provides that “a dismissal based on age is fair if the employee reached the normal or agreed retirement for persons employed in that capacity.”   
 
This challenge that we are facing as employers of domestic workers is what is normal retirement age and is there an agreed retirement age…

 

The above is just a brief overview of specific aspects related to the employment relationship between the employer and the domestic worker.  


If you do not find an answer to a specific question you may have please utilize any of the following communication channels and we will assist you and respond to your specific question as soon as possible;
  • Visit of website www.edomestix.co.za and post your question on our Blog or on our “Contact Us” page.
  • You may also contact our Call Centre at 071 147 1213 and a Consultant will address your question.
  • You may also send us an email to info@edomestix.co.za and we will attend to your question.  
 
Prepared by Albert van der Merwe 
 
 

 

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