Source: HER LAW – Making the law work for you by Adv. M. Nagtegaal
The problem is that most employers of domestic workers don’t have Human Resource training, and this leads to many being treated unfairly. But, like any other employee, they are entitled to certain basic benefits.
Read on and do some HR housecleaning, and make sure that your domestic worker is protected and treated in the right way.
Domestic workers and the law
The position of domestic workers is regulated by the Basic Conditions of Employment Act, which needs to be read along with a document called the Sectoral Determination governing the Domestic Worker Sector. The guidelines that are set out in the Determination must be reflected in the contract of employment. Any provisions or conditions which are less favourable than those set by the Determination are invalid.
The definition of a domestic worker
The Basic Conditions of Employment Act defines a domestic worker as an employee whose job is wholly or mainly to do domestic work in a dwelling that a household uses mainly to live in. Gardeners, people employed as drivers of motor vehicles, and people who take care of children, the aged, the sick, and the disabled also fall within the Act’s definition of domestic workers. Domestic workers who are employed or supplied by employment services are also included in the definition.
The Sectoral Determination prohibits employment of any person under the age of 15, so it’s important for employers to verify domestic workers’ ages.
Employees who do domestic work in homes on farms are classified as farm workers, and the minimum conditions of employment for these people is the same as it is for other farm workers.
The categories of domestic workers
The Act distinguishes between two categories of domestic workers: regular day workers and live-in domestic workers.
REGULAR DAY WORKERS
Regular day workers are people employed on not more than three days in any week by the same employer for a period of not less than four consecutive weeks. Regular day workers are not casual employees and, unlike casual employees, they are entitled to paid leave and paid sick leave. The position of regular workers is in all ways the same as that of other domestic workers, except that the laws regulating notice of termination of employment don’t apply to them.
DOMESTIC WORKERS WHO LIVE IN OR WORK FOUR-PLUS DAYS
Special laws exist for live-in workers or workers employed for four or more days a week by the same employer. These include laws regulating the spread-over of working time, working hours, meal intervals, maximum overtime, and notice of termination of employment.
When a domestic worker starts work, the employer must provide him or her with the particulars or details set out in Section 9 of the Sectoral Determination.
If a domestic worker doesn’t understand the written particulars, the employer must ensure that they are explained to him or her in a language and in a manner that is understood.
The wage of a domestic worker is defined to include all payments made in cash or in kind for his or her employment. The minimum wage that you can pay to a domestic worker is set by the Sectoral Determination for the Domestic Worker Sector, and it increases annually. You can find this on the Department of Labour’s website under ‘Basic Guide to Minimum Wages (Domestic Workers)’.
The wage of a domestic worker must be calculated on the basis of the number of hours he or she normally works. You work out the hourly wage by dividing the daily wage by the number of hours normally worked in a day.
Employers must pay domestic workers in South African currency, daily, weekly, fortnightly or monthly (whatever the agreement is between employer and employee) and it must be in cash, by cheque, or by direct deposit into an account of the domestic worker’s choice. Where the payment is in cash or cheque, it must be given to the worker at the workplace, during the working hours and in a sealed envelope.
Along with the wages, the employer must give the domestic worker a statement (a kind of pay slip) showing the employer’s address, the domestic worker’s name and occupation, the period he or she is being paid for, the wage rate, the overtime rate, the number of ordinary and overtime hours worked during that period, and also the worker’s total wage. Any deductions made must be detailed.
As the Sectoral Determination doesn’t regulate transport allowances, this is open to negotiation between workers and employers.
You’re not allowed to deduct any money from your domestic worker without her permission!
There are several things for which you can’t deduct money from a domestic worker’s wages. These include costs of employment and training (you must provide free training), the supply of any work equipment and work clothes (you can’t charge her for a uniform or the duster she uses to cleanyour shelves), and food supplied while working or while at the workplace.
Employers can’t fine domestic workers or expect them to repay any overpayments previously made in error by the employer. If your maths is bad, it’s your problem.
Proportionate deductions can be made from the domestic worker’s pay if he or she has been absent from work, unless it was absence on paid leave or absence at the insistence of the employer. If accommodation is supplied to the worker, a deduction of not more than 10% of the total remuneration can be made. The accommodation must be in good condition with at least one window and a lockable door, and he or she must have access to a bathroom.
With the consent of the worker, the employer can deduct certain amounts which the employer has undertaken to pay, for example to an insurance or pension fund, to a bank for a loan payment, or to any person for the rent of accommodation that the domestic worker lives in.
Have a look at how much time a domestic worker is allowed by law to work for you.
NORMAL HOURS (NOT INCLUDING OVERTIME)
A domestic worker may not be made to work more than 45 hours in any week, or work more than nine hours per day for a five-day work week, or more than eight hours a day for a six-day week.
A domestic worker may not work more than 15 hours of overtime per week, or more than 12 hours on any day, including overtime. Overtime must be paid at 1.5 times the employee’s normal wage, or the employer can give the employee paid time off (whatever the agreement is between them). Any time worked on Sundays or public holidays must be paid at double the normal hourly wage, except where the work is part of the worker’s ordinary hours of work (in other words, if the employee normally works on a Sunday); the rate will then be 1.5 times the normal rate.
An employer must grant a domestic worker a daily rest period of 12 consecutive hours between ending work and starting work the next day. This period can (by agreement) be reduced to 10 hours for a worker who lives at the workplace and whose meal interval lasts for at least three hours. A weekly rest period of 36 consecutive hours including Sundays (unless otherwise agreed), must be given.
STANDBY AND NIGHT WORK
Standby is when the domestic worker is required to be at the workplace between 8 p.m. and 6 a.m. the next day, is allowed to sleep, but must be available to work if necessary. Typically, this happens when a worker is looking after small children. This may not be done more than five times per month, and it must be compensated by an allowance. At the time of writing this, the allowance had to be at least R20 per shift.
After five hours the worker is entitled to a one-hour lunch break; the employer and worker can agree to shorten this, but the break may not be less than 30 minutes. During the break the worker may be required to perform only duties that can’t be left unattended. A worker must, however, be paid for a meal interval in which she is required to be available for work. For example, if a worker must be on standby during his or her lunch break to look after children, then he or she must be paid for that hour. The wage for this hour will be calculated in the same way as other hours of work. When a break is needed during overtime, it may not be less than 15 minutes.
Domestic workers are entitled to at least three weeks’ annual leave on full pay after they’ve completed 12 months of continuous employment. The leave must be taken at times that are convenient to the employer, and the employer may require the employee to take his or her leave at the same time that the employer is on leave. The leave pay must be paid before the beginning of the period of leave.
During a sick leave cycle of 36 months, the employee is entitled to an amount of paid sick leave equal to the number of days he or she would normally work during a period of six weeks.
However, during the first six months of employment, a domestic worker is entitled to one day’s paid sick leave for every 26 days worked. The employee must let the employer know as early as possible that he or she is going to be absent from work. A medical certificate may be required if a worker has been absent from work for more than two consecutive days, or if the employee has been absent more than twice during an eight-week period.
FAMILY RESPONSIBILITY LEAVE
A domestic worker who’s worked for an employer for longer than four months and who works at least four days a week is entitled to five days of family responsibility leave during each 12 months of employment. This leave can be taken when the domestic worker’s child is sick, or if a spouse, life partner, parent, grandparent, child, grandchild or sibling dies, or (in the case of men) when the worker’s child is born.
A domestic worker is entitled to at least four consecutive months’ maternity leave, starting at any time from four weeks before the expected date of birth, unless otherwise agreed, or on a date from which a medical practitioner certifies that it’s necessary. 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 she’ll receive part or all of her salary for the time that she’s off.
The dismissal of an employee on account of her pregnancy, intended pregnancy or any reason related to a pregnancy is automatically unfair. This includes the refusal to allow an employee to resume work after she’s taken maternity leave.
Termination of employment
THE NOTICE PERIOD
The Sectoral Determination stipulates that any party to an employment contract must give written notice (except when it’s given by an illiterate domestic worker) of at least one week if the domestic worker’s been employed for a period of six months or less. A notice period of four weeks is required if the domestic worker has been employed for more than six months.
The service of an employee may not be terminated unless there’s a valid and fair reason, and unless fair procedure is followed. If an employee is dismissed without a valid reason or a fair procedure, the employee may approach the CCMA for help.
In cases of disability the employee must try to accommodate the employee as far as possible. However, if it’s not possible for the employer to adapt the domestic worker’s duties to suit the disability, the employer may terminate his or her services.
When it’s the employer who gives the written notice, it must also be explained orally to the domestic worker. The notice of termination must not be given during any period of leave to which the worker is entitled. Instead of giving the employee notice, the employer can pay the domestic worker the full pay she would have received if she’d worked for the full notice period.
On completing employment the domestic worker is entitled to a certificate of service stating his or her full name, the name and address of the employer, the dates when employment started and ended, the job description, and the rates of pay.
PAYMENT ON TERMINATION OF WORK
On termination of employment an employer must pay a domestic worker all the money owed to him or her, for example wages, an allowance, paid time-off not taken, and pro-rata leave. Leave owed to the worker is determined as one week’s wages for every four months worked or one day’s wages for every 17 days worked.
When an employer terminates a contract of employment due to his or her economic, technological, or structural needs (also called operational requirements), severance pay must be paid to the employee. The severance pay must be equal to at least one week’s full pay for each completed year of continuous service with the employer.
NOTICE AND ACCOMMODATION
If a worker whose job is being terminated lives in accommodation that’s on the premises of the employer or that’s supplied by the employer, the employer must allow him or her to carry on living in it for a period of one month after notice is given, or if the contract requires notice of more than a month, the worker must be allowed to live in the accommodation for the notice period.
Where to find out more …
Home Services lists cleaning services and anything else you need to have done around the house.
The South African Labour Guide is a private company with a website that offers a wealth of information.
The South African Department of Labour has an official website where you will find everything you need to know about domestic workers. The section on domestic workers has been divided into Basic Guides and covers everything from overtime to termination of services. The section on dismissal is set out very clearly and explains the steps you have to follow.