Domestic workers - what are their rights?

The issue around domestic workers’ rights made headline last week, when a family advertised for a ‘nice smelling domestic’ for a salary of R2000 per month. The advertisement was placed on Gumtree by a family seeking preferably a foreign domestic worker (particularly a Zimbabwean), who would get two Sundays off a month, and be required to hand over their passport to the owner. The position has reportedly since been filled.

With Human Rights Day a week away, Justmoney delves into the rights of domestic workers and the laws surrounding their employment.

The law

Lindiwe Shibambo, founder and managing director of Maid4U, noted that the advertisement placed on Gumtree was disturbing, as it clearly went against the Basic Conditions of Employment Act, as well as the minimum wage for domestic workers.

When it comes to domestic workers’ rights, Shibambo highlighted that the laws apply to all domestic workers, regardless of their nationality and whether they are in the country legally or illegally, as it is a matter of basic human rights.

“When you look at sectoral determination and what it stipulates when it comes to minimum wage, when it comes to working conditions, it applies to all domestic workers, be it foreign, be it national, be it legal, be it illegal,” stressed Shimbambo.

Working hours

According to the Department of Labour’s guide to the Basic Conditions of Employment Act, working hours can be divided into five areas: normal hours, overtime, daily and weekly rest-periods, standby, and night work.

According to the guide, normal working hours exclude overtime. A domestic worker may not work more than 45 hours a week normal working hours, or more than nine hours per day for a five day work week. A domestic worker may also not be made to work more than eight hours per day in a six day work week.

With regards to overtime, a domestic worker may not work more than 15 hours of overtime per week, and may not work more than 12 hours on any day, including overtime. According to the guide, overtime must be paid at one and a half times the employee’s normal wage, or alternatively the employee may agree to receive paid time-off.

Domestic workers are also entitled to daily and weekly rest-periods. According to guide, domestic workers are entitled to a daily rest period of 12 consecutive hours and a weekly rest period of 36 consecutive hours, which must include Sunday, unless otherwise agreed. The guide notes that the daily rest period may be reduced, by agreement, to 10 hours if the domestic worker lives on the premises and the meal interval last longer than three hours

“The weekly rest period may by agreement be extended to 60 consecutive hours every two weeks or be reduced to eight hours in any week if the rest period in the following week is extended equivalently,” added the Basic Conditions of Employment Act guide on domestic workers minimum wages and conditions of employment.

Domestic workers are also allowed to be on stand-by, which is the period between 20:00 and 06:00 the next day, when the worker may be required at the workplace. The worker is permitted to rest or sleep, but must be available to work if necessary.

Lastly, night work may also be entered into, for the period after 18:00 and before 06:00 the next day, however, this must be agreed in writing and must be compensated with an allowance if the domestic worker resides on the premises. If the worker resides elsewhere, transport must be available between the domestic worker’s residence and the workplace at the beginning and end of the shift.

Working on Sundays is voluntary, and a domestic worker cannot be forced to work on a Sunday. Furthermore, if the worker decides to work on a Sunday, they are entitled to double the daily wage. In relation to the advertisement placed on Gumtree, the domestic worker would get two Sundays off a month, otherwise they were expected to work seven days a week. However, there was no mention of double wages in the advert – only R2,000 a month was offered.

Minimum wage

While there are still debates on a national minimum wage taking place, the domestic workers sector already has a minimum wage in place. Depending on your working hours and your location, the wage payable may alter.

For the period 1December 2016 to 30 November 2017, the domestic worker minimum wage are as follows:

Source: Basic Conditions of Employment Act Sectoral Determinations for domestic worker wages 2016/2017

Source: Basic Conditions of Employment Act Sectoral Determinations for domestic worker wages 2016/2017

For a breakdown of the regions that fall within Area A, click here.

With regards to wages, Shibambo pointed out that employers can also deduct 10% of the domestic worker’s salary if they are residing on the property for rent. However, you cannot just deduct the 10% because you are providing your domestic worker with a bed. The room in which s/he is staying needs to be vetted by a secondary person. There are certain criteria that the room must meet in order to be suitable and allow for the 10% deduction in salary for accommodation.

Among the criteria are things such as having a window, electricity and other basic amenities that the domestic worker is entitled to.

Enforcing your rights

If you are a domestic worker, there are a number of channels at your disposal to complain if there is an issue with regards to your employment. Shibambo explained: “The complaints are taken through to the CCMA, that’s the first channel. The second channel can be any department of labour, within the Department of Labour there are divisions where the domestic worker issues an address.”

The problem doesn’t just lie with the employers who are either willingly or unwittingly flouting the law. Many domestic workers, according to Shibambo, are simply not aware of what their rights are when it comes to employment, exacerbating the situation. However, there are also incidents where the employer is exploited by their domestic worker. Education in this space is needed for both employers and domestic workers so that each party understands their roles and responsibilities, and how they can act within the law.

Shimbambo stated: “I would say 99.9% [of domestic workers] are not aware of their rights and responsibilities, they are not aware of their rights vis-à-vis responsibilities, [and] they are not aware of the [Basic Conditions of Employment] Act.”

Furthermore, Shimbambo highlighted that in some instances, many people are simply happy to have employment, regardless of whether or not they are being paid the minimum wage. “When you get a willing participant who says, right now I’m sitting at home and I’m hungry, and someone is saying they will give me R2000 to clean their house, so therefore I’m going to take it. If you look at it, there needs to be a bit of aggressiveness from the Department of Labour in conjunction and partnership with organisations like Maid4U to say, let’s go and do an education campaign and talk about their rights and their responsibilities, so that people are more aware.”

Shibambo advised that if you can’t afford to hire a domestic worker according to the laws of what you should pay, then work around your budget and see what working hours you can afford to have a domestic worker, even if it is only one day a week. Work around the law and your budget and come to an agreement as to what contract you legally implement.

For more information on domestic worker rights, click here.