DOMESTIC WORKERS AND THE LAW
by Bob von Witt
and Mike Wagener
Some years ago we alerted our clients to the fact that the Basic Conditions of Employment Act ("BCEA") was applicable to domestic workers. Employers were encouraged to conclude contracts with domestic workers and to keep proper records. Since the date of that Industrial Relations brief, the BCEA has been amended, and we also have a Sectoral Determination in the domestic worker sector. We do not propose to set out the full provisions of the amendments to the BCEA, nor the provisions of the sectoral determination, but some of the most important changes are as follows:
The ordinary hours of work should not be more than 45 in any week and 9 in any day if the employee works for 5 days or fewer in a week, or 8 hours in any day if the employee works on more than 5 days in a week.
The hours indicated above all exclude overtime, Sundays and meal intervals.
For domestic workers who work for 27 or fewer ordinary hours per week, the hourly rate if R4.51, the weekly rate R212.77 and monthly R527.67. It is important to note that domestic workers will be entitled to
a wage increase of at least 8% on 1 November 2003 and on 1 November 2004, and the wage increase must be calculated on the domestic workers actual wage in the preceeding month. This means that if an employer pays his domestic worker R1000.00 per month, even though this is more than the minimum prescribed wage, he will still have to increase the remuneration by 8% of R1000.00, not 8% of R800.00.
A domestic worker may only be required to work overtime in accordance with an agreement, and the overtime must not exceed 15 hours per week. The agreement referred to may not require the domestic worker to work more than 12 hours, (including overtime), on any day.
If a domestic worker works on a Sunday he/she is entitled to double his/her normal wage for each hour worked. If the Sunday work is part of the domestic worker’s ordinary hours of work, payment must be 1½ times the domestic worker’s normal wage for each hour worked.
An employee may not require a domestic worker to work on a public holiday except by agreement. If a public holiday falls on a day on which a domestic worker would normally have worked, an employer must pay the domestic worker who does not work on the public holiday, the domestic workers normal daily wage; and if the domestic worker works on the public holiday, at least double his/her normal daily wage.
Payment for Overtime
Where a domestic worker works overtime, he/she shall be entitled to at least 1½ times his/her wage for the overtime worked.
As a general rule, Employers are not permitted to deduct any amounts from domestic worker’s remuneration unless the worker has given authority in writing. However, if a domestic worker is absent without permission, the employer may make a deduction proportionate to the length of the period of absence from the domestic worker’s wage. In addition, as employers probably already know, both parties must contribute 1% of a domestic worker’s wage to the Unemployment Fund. In this regard, the deadline for registration of employees for UIF purposes has already expired.
Termination of Employment
A domestic worker’s contract may be terminated on notice of not less than 1 week if he/she has been employed for 6 months or less; and 4 weeks if he/she has been employed for more than 6 months.
During the first six months of employment a domestic worker is entitled to 1 days paid sick leave for every 26 days worked. Thereafter, a domestic worker is entitled to 30 days paid leave if he/she works a five day week and 36 days paid leave if he/she works a six day week, in a leave cycle. A leave cycle is 36 months employment. In other words, he/she shall be entitled to as many days sick leave as he/she works in six weeks.
An employer must grant a domestic worker at least 21 consecutive days annual leave on full pay in respect of an annual leave cycle, or, by agreement, 1 day of annual leave on full pay for every 17 days on which he/she works.
Although most of our clients probably already have written contracts with their domestic workers, we suggest that these be revised to bring them into line with the latest amendments.
Clients intending to base decisions or draft contracts on the information contained in this brief should note that this brief is for information only and is not intended as a complete exposé of the provisions relating to domestic workers. Clients should obtain professional advice if they wish to conclude written agreements with their domestic workers.