WHICH LAW REGULATES EMPLOYMENT IN THE DOMESTIC WORKER SECTION?
The position of domestic workers, and all related aspects such as working hours, leave and remuneration, is governed by Sectoral Determination 7: Domestic Workers, which forms part of the Basic Conditions of Employment Act 75 of 1997, known as the “Domestic Workers Act” (the “Act””). Aspects relating to the termination of a domestic worker are regulated by Schedule 8, the code of good practice, of the Labour Relations Act 66 of 1995.
TO WHOM DOES THE ACT APPLY?
The Act stipulates conditions of employment for the following employees:
- All domestic workers working for a private household or employed by an employment service;
- Independent contractors rendering domestic services;
- Gardeners working for a private household;
- Employees conducting caretaker services such as looking after children, sick and old people and people with disabilities; and
- An employee employed as a driver for a private household.
- Domestic workers who work for the same employer not more than three days in a week and not less than four consecutive weeks are considered as regular day workers. These domestic workers are not casual employees but they are entitled to paid leave and paid sick leave. The Act and all other conditions regarding domestic workers apply to regular day workers.
REMUNERATION, DEDUCTIONS , MINIMUM WAGE AND UIF
The Act prescribes minimum wages applicable to domestic workers in terms of table 1 & 2 of the Act and is categorized into minimum wages for domestic workers who work more than 27 hours per week and minimum wages for domestic workers who work 27 or less hours per week. Information regarding the minimum wage and the calculation thereof can be obtained from the Labour Department’s website: http://www.labour.gov.za/.
It is important to note that should a domestic worker earn more than the prescribed minimum wage, he/she will continue to earn the higher wage as the condition of employment cannot be changed be the employer unilaterally.
An employer must provide a domestic worker with a payslip containing the following information:
The employer’s name, surname, address and occupation; the period of payment; the domestic worker’s hourly rate and overtime rate; hours and overtime worked; the wage amount, details of any deductions and the net payment.
In terms of the Act, the employer is only allowed to make certain deductions if the domestic worker agrees to the deduction(s). Permissible deductions are: medical aid; pension or provident fund; trade union subscription; payment of an account (example a personal loan); and a loan or advance which may not be more than 10% of the total wage.
Deductions that are not allowed in terms of the Act are: any amount greater than the wage; breakage such as electrical appliances and crockery; costs of meals provided during working hours; the costs of any cleaning equipment and clothes such as a uniform; and training.
Very often employers provide accommodation for their domestic workers. Deductions relating to accommodation may only be made if the domestic worker has agreed to the deduction and it may not be more than 10% of the total wage. The Act further stipulates certain standards that the accommodation need to comply with:
The accommodation must be weatherproof and in a good condition; the accommodation must have at least one door and window and the accommodation must be fitted with a bathroom or, if not fitted with a bathroom, the domestic worker must have access to a bathroom.
If an employer’s domestic worker works for more than 24 hours a month, they must be registered with the Unemployment Insurance Fund (UIF). It is the employer’s responsibility to register the domestic worker with the UIF, and to ensure that payment is made. Monthly contributions are 2% of the domestic worker’s wage, which is split evenly between the employer and the employee.
In this issue:
- Which law governs employment in the domestic worker section?
- To whom does the Act apply?
- Remuneration, deductions, minimum wage and UIF.
- Leave and working hours.
LEAVE AND WORKING HOURS
A domestic worker is entitled to annual leave; sick leave; family responsibility leave and maternity leave.
A domestic worker is entitled to three weeks’ paid leave per a 12 month annual leave cycle. Leave pay must be paid at the beginning of the leave period and an extra day’s paid leave should be granted for each public holiday that falls within the leave period.
Sick leave is calculated over a 36 months cycle and is based on the number of days the domestic worker worked over a six week period. Thus, if a domestic worker works 5 days per week, she will be entitled to 30 days of sick leave over a 36 month cycle (5days X 6weeks = 30).
If a domestic worker works at least 4 days a week and has worked for an employer for at least 4 months, she will be entitled to 5 days’ paid family responsibility leave per leave cycle of 12 months.
A domestic worker is entitled to at least 4 consecutive months’ maternity leave. The employer isn’t obliged to pay the worker for the period for which she is off work on maternity leave. However, the employer and worker may agree that the domestic worker will receive part or full pay for the time she is off due to pregnancy. The dismissal of an employee based on her pregnancy, or any reason related to pregnancy, is automatically unfair, which includes the refusal to allow a domestic worker to return to work after maternity leave.
Working hours are also regulated by the Act.
Domestic workers may not work more than 45 hours per week. They may not be made to work more than 9 hours per day for a 5 day work week, or 8 hours per day for a 6 day work week.
Overtime can only be worked if so agreed between the employer and employee. A domestic worker may not work more than 15 hours overtime per week and may not work more than 12 hours, including overtime, on any day.
An employer must give a domestic worker the following rest periods: a daily rest period of 12 consecutive hours, between finishing work and starting work the next day; the daily rest period can be reduced to 10 consecutive hours but only if by agreement and if the employee resides on the premises. A domestic worker is further entitled to a weekly rest period of 36 consecutive hours which includes a Sunday.
Night work involves work done after 18:00 and before 06:00 and is only allowed if the domestic worker has agreed to the night work; if the domestic worker is compensated at a rate as agreed upon and if transport is available for the employee to travel between his/her place of residence and the place of employment.
A domestic worker is entitled to a meal interval, “lunch-break”, of 1 hour after 5 hours of work. Such meal intervals may be reduced to 30 minutes only by agreement between the employer and employee.
Work on Sundays is completely voluntary and a domestic worker may not be forced to work on a Sunday. If a domestic worker agrees to work on a Sunday, he/she must be paid double the normal daily wage. In the event of a domestic worker working on a Sunday on a regular basis, he/she must be paid 1,5 times the normal hourly wage.
A domestic worker is entitled to paid leave on all the days listed in the Public Holidays Act. If a domestic worker works on these public holidays, he/ she is entitled to double the normal daily wage.