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Chapter 6 - Labour LawSummary of the sectoral determination for domestic workersWorking conditions of domestic workers are regulated by a sectoral determination and the Labour Relations Act. 1. Notice period and termination of employment Any party to an employment contract must give written notice, except when an illiterate employee gives it, as follows:
Notice must be explained verbally by or on behalf of the employer to a domestic employee if he/she is not able to understand it. If the domestic worker lives in accommodation provided by the employer then the employer must give him/her one month’s notice to leave the accommodation or until the contract of employment could lawfully have been terminated. All money that is owing to the domestic worker for example, wages, allowances, pro rata leave and paid time-off not taken, must be paid. An employer who has to dismiss an employee due to a change in his/her economic, technological, or structural set-up, called operational requirements in the determination, is responsible for severance pay to the employee. 2. Procedure for terminating employment A domestic worker’s contract of employment may not be terminated unless a valid and fair reason exists and a fair procedure is followed. If an employee is dismissed without a valid reason or without a fair procedure, the employee can refer the case to the CCMA. If a domestic worker cannot return to work because of a disability, the employer must investigate the nature of the disability and decide whether or not it is permanent or temporary. The employer must try to change or adapt the duties of the employee to accommodate the employee as far as possible. But, if it is not possible for the employer to change or adapt the duties of the domestic employee then the employer can terminate his/her services. The Labour Relations Act sets out the procedures that must be followed when a person’s services are terminated. 3. Wage/remuneration/payment All employers of domestic workers throughout South Africa have to pay their employees a minimum wage. There are two rates for the minimum wage which are based on:
Wages according to areas Wages are prescribed for two areas, Area A and Area B. These areas are based on municipal boundaries. Area A: Bergrivier Local Municipality, Breederivier Local Municipality, Buffalo City Local Municipality, Cape Agulhas Local Municipality, Cederberg Local Municipality, City of Cape Town, City of Johannesburg Metropolitan Municipality, City of Tshwane Metropolitan Municipality, Drakenstein Local Municipality, Ekurhulen Metropolitan Municipality, Emalahleni Local Municipality, Emfuleni Local Municipality, Ethekwini Metropolitan Unicity, Gamagara Local Municipality, George Local Municipality, Hibiscus Coast Local Municipality, Karoo Hoogland Local Municipality, Kgatelopele Local Municipality, Khara Hais Local Municipality, Knysna Local Municipality, Kungwini Local Municipality, Kouga Local Municipality, Langeberg Local Municipality, Lesedi Local Municipality, Makana Local Municipality, Mangaung Local Municipality, Matzikama Local Municipality, Metsimaholo Local Municipality, Middelburg Local Municipality, Midvaal Local Municipality, Mngeni Local Municipality, Mogale Local Municipality, Mosselbaai Local Municipality, Msunduzi Local Municipality, Mtubatu Local Municipality, Nama Khoi Local Municipality, Nelson Mandela, Nokeng tsa Taemane Local Municipality, Oudtshoorn Local Municipality, Overstrand Local Municipality, Plettenbergbaai Local Municipality, Potchefstroom Local Municipality, Randfontein Local Municipality, Richtersveld Local Municipality, Saldanha Bay Local Municipality, Sol Plaatjie Local Municipality, Stellenbosch Local Municipality, Swartland Local Municipality, Swellendam Local Municipality, Theewaterskloof Local Municipality, Umdoni Local Municipality, uMhlathuze Local Municipality and Witzenberg Local Municipality. Area B–applies to the rest of South Africa Wages will be payable according to the number of hours worked per week. If a domestic employee works for 27 ordinary or less hours per week, he/she will be entitled to slightly higher wage. This is to compensate the employee, as he/she does not have a full-time job. How are wages calculated? Area A These are the minimum rates for the period 1 December 2008 – 30 November 2009: (wage rates are adjusted every year) If an employee works 27 ordinary hours or less per week his/her hourly wage is R8.12 per hour / R219.24 per week / R949.97 per month. If an employee works more than 27 ordinary hours per week, his/her hourly wage is R6.88 per hour /R309.60 per week / R1340.95 per month. Area B If an employee works more than 27 ordinary hours per week, his/her hourly wage is R5.63 per hour/ R253.35 per week / R1097.40 per month. Guaranteed minimum rate Some domestic employees might work less than 4 hours per day. If this is the case, he/she should be paid for 4 hours worked. Annual increase Wages will go up by at least 8% in November of every year. Wage increases are published by the Department of Labour. Calculating the minimum wages Employers who cannot afford to pay the minimum wage can choose to reduce the number of hours to be worked instead of retrenching the employee. However, it is against the law to pay less than the minimum hourly rate. If an employer pays more than the prescribed hourly rate, they cannot reduce the rate because it will be an unfair labour practice. Example of calculating a domestic worker’s wage Sarah is a domestic worker who works 6 hours a day from Monday to Friday for an employer who lives in Soweto. What is the minimum rate that Sarah can be paid according to the Sectoral Determination for domestic workers? 6 hours per day x 5 days = 30 hours worked per week 30 hours per week x R6.88 (rate for Area A for an employee working more than 27 hours per week) Additional payments (such as for overtime or work on Sundays or Public holidays) are calculated from the total remuneration.. 4. Transport allowance The Sectoral Determination does not regulate transport so it is open to negotiation between the parties. 5. Hours of work (a) Normal hours (excluding overtime) A domestic worker cannot work more than:
(b) Overtime Overtime is voluntary and a domestic worker may not work –
Overtime is paid at one and a half times the employee’s normal wage or an employee may agree to take paid time off. (c) Daily and weekly rest periods A domestic worker is entitled to a daily rest period of 12 consecutive hours (hours in a row) and a weekly rest period of 36 consecutive hours, which must include Sunday, unless otherwise agreed; The daily rest period can be reduced to 10 hours if the parties agree and if the employee lives on the premises and takes a meal interval that lasts for at least 3 hours. The weekly rest period can by agreement be extended to 60 consecutive hours every two weeks or be reduced to 8 hours in any week if the rest period in the following week is also extended. (d) Standby Standby means any period between 8 p.m. and 6 a.m. when a domestic worker is needed to be at the workplace and is allowed to rest or sleep but must be available to work if necessary. This may only be done if the parties have agreed in writing and not more than 5 times per month. An allowance of at least R20 per shift must be paid for standby. An employer must pay a domestic worker for any time worked in excess of three hours during any period of stand-by. The employee must be paid at the normal overtime rate or given paid time-off. (e) Night work
6. Meal intervals A domestic worker is entitled to a one-hour break for a meal after five hours continuous work. The interval may be reduced to 30 minutes by agreement. When a second meal interval is required because of overtime worked, it may be reduced to not less than 15 minutes. If an employee has to work through his or her meal interval, then they must be paid for this. 7. Work on Sundays Work on Sundays is voluntary and a domestic employee cannot be forced to work on a Sunday. A domestic worker who works on a Sunday must be paid double the daily wage. If the employee ordinarily works on a Sunday he/she should be paid one and a half times the wage for every hour worked. If the parties agree, the employee can be paid by giving her / him time off of one and a half hours off for each overtime hour worked. 8. Public Holidays Domestic workers are entitled to all the public holidays in the Public Holidays Act but the parties can agree to other public holidays. Work on a public holiday is voluntary which means a domestic employee may not be forced to work. The official public holidays are: New Years day Where the government declares an official public holiday at any other time then this must be granted. The days can be exchanged for any other day by agreement. If the employee works on a public holiday he/she must be paid double the normal days wage. 9. Annual leave Full time domestic workers are entitled to 3 weeks leave per year. If the parties agree they can take leave as follows: 1 day for every 17 days worked or one hour for every 17 hours worked. The leave must be given not later than 6 months after completing 12 months of employment with the same employer. The leave may not be given at the same time as sick leave, nor at the same time as a period of notice to terminate work. 10. Sick leave During the first six months of employment, an employee is entitled to one day’s paid sick leave for every 26 days worked. During a sick leave cycle of 36 months, an employee is entitled to paid sick leave that is equal to the number of days the employee would normally work during a period of 6 weeks. The employer does not have to pay an employee if the employee has been absent from work –
and does not produce a medical certificate stating that he/she was too sick or injured to work. The certificate can be from a doctor, a traditional healer or a qualified nurse. 11. Maternity leave A domestic worker is entitled to up to 4 consecutive months maternity leave. The employer does not have to pay the employee for the period for which she is off work due to her pregnancy. However the parties may agree that the employee will receive part of her whole wage for the time that she is off. The mother can also claim maternity benefits from UIF for the full four months. 12. Family responsibility leave Domestic workers who have been employed for longer than 4 months and for at least 4 days a week are entitled to take 3 days paid family responsibility leave during each leave cycle in the following circumstances:
13. Deduction from the remuneration An employer is not allowed to deduct any monies from the employee’s wages without his/her written permission. There can be a deduction of no more than 10% for accommodation if the accommodation: - is weatherproof and generally kept in good condition; 14. Other issues Other issues that are not dealt with the Sectoral Determination include: - probationary periods These can all be negotiated between the parties and included in the contract of employment 15. Prohibition of employment No one under the age of 15 can be required or permitted to work. 16. Other conditions of employment There is no provision which prevents other conditions of employment being included in a contract of employment but any new conditions may be less favourable than those set by the Sectoral Determination. 17. General administrative requirements The Sectoral Determination states that employers must comply with the following administrative processes:
(See www.labour.gov.za and click on Sectoral Determination for domestic employees for more information.) Sample contract of employment for domestic workersThis is a sample contract of employment for a domestic worker Name of employer……… To Name of employee ………………………. 1. Commencement of employment Employment started/will start on ………………………… and continue until terminated in terms of this contract. 2. Place of work …………………………………. 3. Job description - Job title 4. Hours of work 4.1 Normal working hours will be ……… hours per week, made up as follows: Monday/Tuesday/Wednesday/ Thursday / Friday ………….. a.m. to ………………p.m. Saturdays: ………………………….a.m. to ………………………p.m Sundays: …………………………….a.m. to ………………………p.m. 4.2 Hours of work will be extended with by not more than 5 hours per week during ……………..and reduced by the same hours during ……………….. 4.3 Overtime will be worked as agreed from time to time and will be paid at the rate of one and a half times of the total wage as set out in clause 5.2 of this contract. 4.4 Standby will only be done if agreed from time to time whereby an allowance of at least R20 will be paid per standby shift. 5. Wage 5.1 The employees wage shall be paid in cash on the last working day of every week/month and shall be: R…………. 5.2 The employee shall be entitled to the following allowances/other cash payments in kind: 5.2.1 Accommodation per week/month to the value of R………….. 5.3 The following deductions are agreed upon: R…………. 5.4 The total value of the above remuneration shall be : R……………… 5.5 The employer shall review the employee’s salary/wage on or before 1 November of every year. 6. Termination of employment Either party can terminate this agreement with one weeks notice during the first six months of employment and with four weeks notice thereafter. Notice must be given in writing except when it is given by an illiterate employee. In the case where the employee is illiterate notice must be explained orally by or on behalf of the employer. On giving notice the employer is to provide the employer who resides in accommodation that belongs to the employer accommodation for a period of a month. 7. Sunday work Any work on Sunday will be by agreement between parties and will be paid according to the Sectoral Determination. 8. Public Holidays Any work on holidays will be by agreement and will be paid according to the Sectoral Determination. 9. Annual leave The employee is entitled to three weeks paid leave after every 12 months of continuous service. Such leave is to be taken at times convenient to the employer and the employer may require the employee to take his/her leave at such times as coincide with that of the employer. 10. Sick leave 10.1 During every sick leave cycle of 36 months the employer will be entitled to an amount of paid sick leave equal to the number of days the employee would normally work during a period of six weeks. 10.2 During the first 6 months of employment the employee will be entitled to one day’s paid sick leave for every 26 days worked. 10.3 The employee is to notify the employer as soon as possible in case of his/her absence from work through illness. 10.4 A medical certificate is required if absent for more than 2 consecutive days or if absent on more than two occasions during an 8 week period. 11. Maternity leave The employee will be entitled to ………………… months maternity leave without pay ………….. 12. Family responsibility leave The employee will be entitled to three days family responsibility leave during each leave cycle if he/she works on at least 4 days a week. 13. Accommodation 13.1 The employee will be provided with accommodation for as long as the employee is in the service of the employer, which shall form part of his/her remuneration package. 13.2 The accommodation may only be occupied by the employee and his/her immediate family, unless by prior arrangement with the employer 13.3 Prior permission should be obtained for visitors who wish to stay the night. However, where members of the employees direct family are visiting, such permission will not be necessary. 14. Clothing ………………sets of uniforms/protective clothing will be supplied to the employee free of charge by the employer and will remain the property of the employer. 15. Other conditions of employment or benefits ………………………………………………….. 16. General Any changes to the written contract will only be valid if agreed by both parties. ……………………………………………………. Acknowledgement of receipt by employee …………………………………………… Date:………………………….
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