Critical update of new/amended laws applicable to domestic workers and other precarious workers...

Critical update of new/amended laws applicable to domestic workers and

other precarious workers

December 2013

PRODUCED BY

Precarious Workers Research Project

Social Law Project

Faculty of Law

University of the Western Cape

RESEARCH TEAM

Prof. Darcy du Toit Fairuz Mullagee

Roger Ronnie Ernest Booys

SUPPORTED BY

FNV

DESIGN & LAYOUT

Hawa Palekar

UNIVERSITY OF THE WESTERN CAPE | SOCIAL LAW PROJECT | PRECARIOUS WORKERS RESEARCH PROJECT | 2014

1 ANNUAL LEGISLATIVE REVIEW

CONTENTS

INTRODUCTION …..………………………………………………………………………………………….. 2

CONVENTION 189 FOR DOMESTIC WORKERS ……………………………………………………. 4

THE REGULATION OF NON-STANDARD FORMS OF WORK ………………………………….. 4

Agency workers Employment Services Bill Temporary workers Part-time workers Justifications for differential treatment of agency, temporary and part-time workers Migrant workers

TOWARDS COLLECTIVE BARGAINING ………………………………………………………………… 13

ENFORCEMENT OF MINIMUM CONDITIONS OF EMPLOYMENT ……………………….. 15

THE DISPUTE RESOLUTION SYSTEM ………………………………………………………………….. 16

COMPENSATION FOR OCCUPATIONAL INJURIES AND DISEASES ACT (COIDA) ….. 17

THE EMPLOYMENT EQUITY AMENDMENT BILL ………………………………………………… 18

Definition of “discrimination” broadened Protection against discrimination redefined Psychometric testing

THE UNEMPLOYMENT INSURANCE ACT …………………………………………………………… 20

CASE LAW ………………………………………………………………………………………………………… 20



INTRODUCTION

This report builds on the findings of research done by the Domestic Workers

Research Project (DWRP) at the University of the Western Cape from 2009 to 2012,

which were recently published in book form.1 The primary aim is to review the latest

developments in the law and, in particular, the impact of the latest amendments to

the Labour Relations Act 66 of 1995 (LRA), the Basic Conditions of Employment Act

75 of 1997 (BCEA) and the Employment Equity Act 55 of 1998 (EEA), as well as the

Employment Services Bill of 2012, on the issues and problems identified in the above

research. Although the focus is on the position of domestic workers, the implications

of these changes for other categories of precarious workers experiencing the same

or similar challenges should be borne in mind throughout.

The starting point is that section 23(1) of the Constitution affords ‘everyone’ the

right to fair labour practices. It therefore applies to all employers as well as all

workers. As far as workers are concerned, section 23 makes it clear that ‘everyone’

is not confined to ‘employees’ and that ‘workers’ is a broader category than

‘employees’.2 The LRA and the BCEA were enacted to give effect to the rights

contained in section 23. These statute apply to all ‘employees’ but are silent as to

‘workers’ who may not fall within the definition of ‘employee’.3

In addition, section 9 of the Constitution guarantees ‘everyone’ the right to equality

(which includes affirmative action) and the right not to be unfairly discriminated

against. The EEA was enacted to implement these rights in the employment

relationship but, again, is limited to ‘employees’.

Until 2002 domestic workers were not protected by any special legislation. However,

in that year the Minister of Labour promulgated Sectoral Determination 7: Domestic

Workers Sector (SD 7)4 to supplement the BCEA in regulating minimum standards of

employment for domestic workers.5 This made South Africa one of relatively few

countries where the need for standard-setting based on the unique conditions of the

domestic sector was acknowledged and steps were taken to address it. Significantly,

1 D du Toit (ed) Exploited, Undervalued – and Essential: Domestic workers and the realisation of their

rights(Pretoria University Law Press, 2013), hereafter ‘the book’.

2 See SANDU v Minister of Defence [1999] 6 BCLR 615 (CC).

3Independent contractors are excluded from the definition of ‘employee’: see sec 213 of the LRA, sec 1 of the EEA and sec 1 of the BCEA. Sections 200A of the LRA and 83A of the BCEA create a presumption that a worker is an ‘employee’ for statutory purposes if any one of the typical features of the employment relationship is present. 4 In terms of s 51(1) of the BCEA.

5 See chapter 3 of the book for more detailed discussion.



‘independent contractors’ were included in the definition of ‘domestic worker’.6

With effect from 1 April 2003 domestic workers were furthermore included under

the Unemployment Insurance Act 63 of 2001 (UIA) which regulates the payment of,

amongst others, unemployment and maternity benefits to qualifying contributors.7

Unlike SD 7, the definition of ‘domestic worker’ was once again limited to

‘employees’. The effect is that domestic workers who are shown to be ‘independent

contractors’ in a technical sense (that is, rendering services to a householder without

being an ‘employee’) would be covered by SD 7 but not by the UIA, LRA or EEA. This

anomaly remains to be addressed.8

Contestation between business and labour over various provisions of the LRA, BCEA

and EEA has been ongoing since these statutes were enacted. In 2010, for the second

time in a decade, a series of Bills proposing significant amendments to all three

statutes as well as an Employment Services Bill were introduced.9 Major controversy

as well as concerns arising from the poor drafting of the Bills led to their withdrawal

and the submission in 2012 of the redrafted Bills that are currently before

Parliament. Their status at the time of writing are as follows:

The LRA Bill was passed by the National Assembly on 20 August 201310 and by the

National Chamber of Provinces on 5 November 2013, but with amendments (not

relevant to domestic workers at present) which have to be approved or rejected by the

National Assembly. The National Assembly Portfolio Committee on Labour was to have

considered the amendments on 12 November 2013 but the meeting was cancelled. This

means that the Bill can only be finalised in 2014.11

6 Item 31, SD 7.

7See chapter 4 of the book for a more detailed discussion of the provisions of the UIA as far as domestic workers are concerned and the implementation of the right to social security in terms of sec 27(1)(c) of the Constitution.

8 Having said that, it is likely that the overwhelming majority of domestic workers would fall within

the definition of ‘employee’ as interpreted by the courts in recent case law. See, for example, White

v Pan Palladium SA (Pty) Ltd (2006) 27 ILJ 2721 (LC); City of Tshwane Metropolitan Municipality v

SALGBC(2012) 33 ILJ 191 (LC); “Kylie” v CCMA [2010] 7 BLLR 705 (LAC).

9 Government Gazette 17 December 2010, Notice 1112 of 2010.

10 A walkout in protest by opposition DA members against certain clauses of the Bill in June left the

National Assembly without a quorum and delayed adoption of the Bill until 20 August 2013.

11 The Bill was finally approved by Parliament in February 2014 and is awaiting Presidential assent

(note added 19 March 2014).



The BCEA, EEA and Employment Services Bills were passed by parliament on 5 and 21

November 2013 and has been signed by the President. As noted below, there are

question marks over the compliance of the EEA Bill with international law and/or its

constitutionality, which may result in the Bill being referred back to Parliament or, if

signed into law, to a constitutional challenge and/or a complaint to the International

Labour Organisation (ILO).12

CONVENTION 189 FOR DOMESTIC WORKERS

As far as domestic workers are concerned, the above amendments must also be

seen in light of ILO Convention 189 on Decent Work for Domestic Workers, as

amplified by Recommendation 201, adopted by the ILO on 16 June 2011 and ratified

by the South African government on 7 June 2013. After years of deliberations, this

instrument marks the first set of international standards for the protection of

domestic workers and provides an additional benchmark against which the

implementation of domestic workers’ rights must be assessed.

For domestic workers who are South African citizens or permanent residents

Convention 189 adds nothing radical to the substantive rights already contained in

legislation or implied in the Bill of Rights (but not necessarily implemented in full).

However, its underlying philosophy of “decent work” reinforces and clarifies the

principles that must inform the interpretation of the content of those rights. From

this standpoint there are a number of shortcomings in the existing statutory

framework which need to be addressed in order to comply fully with Convention 189

and the Bill of Rights.13 The most important of these, and the extent to which the

2012 amendment bills address them, are discussed in the remainder of this report.

THE REGULATION OF NON-STANDARD FORMS OF WORK

Many of the amendments to the LRA have their origins in the shift towards flexible

production and the growth of “non-standard” work14 that has become a feature of

12 The BCEA and EEA Bills have received Presidential assent but are awaiting promulgation (note

added 19 March 2014).

13 As summed up in chapter 8 of the book.

14 ‘Standard employment’ is used to refer to full-time, indefinite work for a single employer which,

historically, was considered the norm until approximately the 1980s. ‘Non-standard’ work refers to

other forms of working arrangements that have proliferated since then, such as part-time,

temporary, home-based and agency work.



global labour markets since the 1980s. Labour law is generally designed to fit the

“standard” employment model. Domestic work is typically “non-standard” (part-time,

temporary, informal) and most of labour law – including the LRA –does not fit the conditions

of domestic work and does not give domestic workers adequate protection in practice. The

phenomenon of agency work or triangular relationships, 15 legally defined as

“temporary employment services” (TESs) and commonly known as “labour brokers”, has

been particularly controversial.

Against this background the 2009 election manifesto of the ruling African National

Congress promised the following:

“In order to avoid exploitation of workers and ensure decent work for all

workers as well as to protect the employment relationship,[government will]

introduce laws to regulate contract work, subcontracting and out-sourcing,

address the problem of labour broking and prohibit certain abusive practices.

Provisions will be introduced to facilitate unionisation of workers and

conclusion of sectoral collective agreements to cover vulnerable workers in

these different legal relationships and ensure the right to permanent

employment for affected workers.”

Following this election promise, substantial amendments were made to chapter IX of

the LRA to protect three categories of non-standard employees: employees placed

by TESs (“agency workers”), employees on fixed-term contracts (“temporary

workers”) and part-time employees. The new sections 198A, 198B and 198C of the

LRA extend significant protection to employees in these categories earning below

the earnings threshold provided for in section 6(3) of the BCEA.16 The discussion that

follows will not deal with the amendments in their entirety but will focus on those

that are relevant to domestic workers and similar cohorts of “non-standard” workers

falling within this category. For this purpose a distinction may be drawn between

non-standard workers in formal (often large) workplaces and those, like domestic

workers, who work outside formal workplaces, often in isolation. Certain

amendments aimed at protecting non-standard workers will, in practice, only affect

15 I.e., where the employees of an employment agency are sent to work for a client of the agency

while remaining employed by the agency rather than its client: see s 198(1) of the LRA.

16 Currently set at R193 805 per year with effect from 1 July 2013.



those in formal workplaces.17 Such amendments will not be relevant to most

domestic workers.

Agency workers

Preliminary research by SLP shows that some 80 employment agencies operate

nationally or regionally in making domestic workers available to clients, some

specialising in domestic work while others cover a range of services, including

training of domestic workers. The present discussion is limited to TES or labour

broking services.

Amendments to section 198 of the LRA address certain problems and abusive

practices associated with TESs across a number of sectors. The main purpose is to

restrict the employment of more vulnerable, lower-paid workers by a TES to

situations of genuine “temporary work” and prevent the relatively widespread

practice of long-term work being disguised as temporary work.

It retains the provision that a TES is the employer of persons whom it employs and

pays to work for a client, and that the TES and its client are jointly and severally

liable for specified contraventions of employment laws.18 The new section 198(4B)

adds that employees must be provided with details of their terms of employment.

Further requirements are that TES employees will be subject to a bargaining council

agreement or sectoral determination applicable to the sector in which the client is

engaged19 and that TESs must be registered.20

The above provisions apply to all TESs and their clients in respect of all TES

employees. The new section 198A introduces additional protection for employees

17 For example, taking into account non-standard workers when assessing the representivity of a

trade union in deciding whether to grant it organisational rights in a workplace: see the new s

21(8)(b)(v) of the LRA.

18 See s 198(4).

19 Section 198(4D). In terms of the categories used by Statistics South Africa, TESs are located in the

“Financial intermediation, insurance, real estate and business services” sector and are subject to no

bargaining council agreement or sectoral determination. Even if they were, regulations appropriate

to this sector may bear no relation to the conditions in sectors where TES employees are actually

working for clients.

20 Section 198(4F). Registration will take place in terms of the Employment Services Act (discussed

below).



earning below the threshold set in terms of the BCEA21 who, in practice, are likely to

include the vast majority of TES employees and most if not all domestic workers

employed by TESs. It defines “temporary service” as work done for a client

for a period not longer than three months, or

as a substitute for an employee of the client who is temporary absent, or

if permitted by a bargaining council agreement, sectoral determination or

ministerial notice.22

TES employees performing “temporary” work for a client beyond these limits (e.g.,

for longer than three months) will be deemed to be employed by the client and not

by the TES.23 Such employees must be treated no less favourably than any other

employees of the client performing similar work and, if the TES terminates their

service with a particular client “for the purpose of avoiding” the three-month limit, it

will be treated as a dismissal.24 TES employees who commenced work for a client

before the above amendments take effect will acquire these new rights three

months after the amendments take effect.25

These provisions will be extremely important to domestic workers who have been

“placed” with clients for extended periods. Given the nature of domestic work,

agencies may seek a ministerial notice (see above) permitting domestic workers to

be “placed” with clients for longer than three months. If so, public representations

must be invited and NEDLAC must be consulted before the Minister may issue a

notice.26

It may also be noted that, in terms of the new section 21(12), a trade union with

organisational rights27 in respect of employees of a TES may exercise those rights in

21 See fn 16 above.

22 Section 198A(1).

23 Section 198A(3). Subject to s 198B, discussed below, they will furthermore be deemed to be

employed by the client on an indefinite or “permanent” basis.

24 Section 198A(4) and (5).

25 Section 198A(9).

26 Section 198A(6) and (7).

27 Relevant organisational rights, subject to the union’s level of representivity among the TES’s

employees, include access to workplace, stop order rights for union dues and the right to disclosure

of information: see ss 12-16, LRA. These rights are limited in the case of privately-employed

domestic workers in terms of s 17 of the LRA.



the workplace of either the TES or that of “one or more clients”. If a trade union

were to organise the employees of a TES providing domestic workers to clients and

acquire organisational rights, therefore, it would be entitled to exercise those in the

domestic workplace as well as the workplace of the TES, subject to the restrictions

contained in section 17 of the LRA. These are:

(a) the right of access to the domestic employer’s home can only be exercised if

the employer agrees; and

(b) the right of access to information does not apply.

The effect of the first these restrictions is not entirely clear. Section 17 was drafted

with the domestic employer in mind, whereas in the case of a worker “placed” in a

domestic home it is the TES that is the employer. The question is whether section 17

can be read as meaning, in such a case, that the client must agree. Since section

21(12) was enacted later than section 17, it should be read as amending section 17

to the extent that there is conflict between the two provisions. It could therefore be

argued that the right of access is unqualified in the case of a worker employed by a

TES (which, in any event, falls outside the domestic work sector). The question

remains to be clarified by the courts or the legislature.

Employment Services Bill

Before moving on to other categories of non-standard workers it should be noted

that chapter 3 of the Employment Services Bill of 2012 (ESB) sets out to regulate

private employment agencies, including domestic worker agencies, in a manner that

is likely to meet the requirements of Convention 189:28

All agencies will need to register and will be subject to regulation, and its

registration may be cancelled if it fails to comply with those requirements (ESB,

clauses 13, 18 and 19);

The registration certificate of an agency must state whether it is permitted to

operate as a TES (clause 13(6));

A TES may not charge any fee to work seekers29 for providing employment

services, apart from exceptional cases where it may be permitted by ministerial

28 See art 15 of C189.

29 “Work seeker” is defined as “any person who is unemployed and looking for work”: clause 1.



notice, and may not make any deduction from the remuneration of an employee

in respect of placement (clause 15(1), (2), (4));

A TES must keep records of work seekers registered with it and keep such

information confidential (clauses 16, 17); and

Agreements between TESs and clients must specify separately the remuneration

that employees will receive and the fee that the client is paying to the

TES (clause 15(5)).

The Minister of Labour has extensive powers to make regulations on any matter relating to

TESs,30 which will make it possible to address any further requirements arising from article

15 of Convention 189. Given the proliferation of employment agencies in the domestic work

sector, the passing of the Bill may have a significant impact and the registration of agencies,

if effectively monitored, will contribute to improving compliance.

Temporary workers

The new section 198B applies to temporary employees earning below the threshold set in

terms of the BCEA31 but does not apply to those working for employers with fewer

than 10 employees32 or those employed in terms of a statute, sectoral determination or

collective agreement that provides for fixed-term employment. It will therefore only be

relevant to domestic workers on temporary contracts in households with ten or more

domestic employees or with labour brokers. This leaves the vast majority of temporary

domestic workers unprotected.

The main purpose is to prevent employers from keeping employees on temporary contracts

indefinitely in order to deny them the benefits of indefinite or “permanent” employment. It

therefore provides that no employer may employ an employee on a fixed-term contract or

series of fixed-term contracts for longer than three months unless the work in question is

genuinely temporary or there is some “justifiable” reason for a fixed-term contract.33 Section

198B(4) then sets out a number of reasons that would justify fixed-term contracts for longer

than three months, which include all the grounds that an employer could reasonably have

for not employing a worker permanently – for example, replacing another employee who is

30 Clause 52, ESB.

31 See fn 16 above.

32 Or those with fewer than 50 employees who have been in business for less than two years,

subject to certain exceptions: see s 198B(2).

33 Section 198B(3).



temporarily absent, seasonal work or a job that is funded by an external source for a limited

period.

If an employer employs a worker on a fixed-term contract (or series of contracts) for longer

than three months without a justifiable reason, the contract will be deemed to be

indefinite.34 To avoid confusion, an offer of a temporary job must be in writing and must

state the reason why it is temporary.35

An employee on a fixed-term contract for longer than three months must furthermore be

treated no less favourably than permanent employees doing the same or similar work,

unless there is a justifiable reason for different treatment.36 If temporary work continues for

more than two years, the employee will be entitled to severance pay on the same basis as

permanent employees.37

Part-time workers

The new section 198C extends protection to vulnerable part-time employees along similar

lines to the provisions regulating part-time work in the European Union and the ILO

Convention on part–time work (Convention 175, 1994). However, like section 198B, it

applies only to temporary employees earning below the threshold set in terms of the

BCEA.38 It also does not apply to those working for employers with fewer than 10

employees,39 nor to employees working less than 24 hours per month for an employer or

during the first three months of employment.40 Like section 198B it will therefore apply only

to part-time domestic workers in households with ten or more domestic workers or those

employed by labour brokers. Again, it leaves the vast majority of part-time domestic workers

without protection.

34 Section 198B(5).

35 Section 198B(6).

36 Section 198B(8). This provision will take effect three months after section 198B enters into force.

“Justifiable” reasons for treating employees differently are set out in section 198D (discussed

below).

37 Section 198B(10). Severance pay is calculated at one week’s remuneration per completed year of

service.

38 See fn 16 above.

39 Or those with fewer than 50 employees who have been in business for less than two years,

subject to certain exceptions: see s 198B(2).

40 Section 198C(2).



In cases where it does apply, section 198C requires employers to treat part-time employees

not less favourably than “comparable” full-time employees41 doing the same or similar work,

unless there is a justifiable reason for different treatment, and provide them with access to

training and skills development not less favourable than the access applicable to a

comparable full-time employee.

It is submitted that section 198C should be reviewed in terms of article 3 of ILO Convention

175, which allows categories of part-time workers to be excluded only “when its application

to them would raise particular problems of a substantial nature”. The threshold of 24 hours

per month is specifically subject to periodic review and South Africa is required “in its

reports [to the ILO] on the application of the Convention [to] indicate the thresholds in

force, the reasons therefor and whether consideration is being given to the progressive

extension of protection to the workers excluded”.42 It is necessary to engage with the

Department of Labour to interrogate the reasons for exclusion and proposals for the

extension of protection to those excluded which will be included in its forthcoming report to

the ILO on the application of Convention 175.

Justifications for differential treatment of agency, temporary and part-time workers

The new section 198D provides that disputes about the interpretation or application of

section 198A to 198C may be referred to the CCMA or a bargaining council with jurisdiction

for conciliation and, if not resolved, to arbitration. It also states that different treatment of

agency, temporary and part-time workers (as referred to in sections 198A, 198B and 198C)

may be justified if it is based on –

(a) seniority , experience or length of service

(b) merit

(c) the quality or quantity of work performed; and

(d) any other criteria of a similar nature, provided it is not a prohibited ground of

discrimination in terms of section 6(1) of the EEA such as race, sex, gender, belief, HIV

status etc.

In multi-employee domestic workplaces factors such as the above would therefore allow an

employer to treat a “permanent” employee more favourably than an agency, temporary or

part-time worker. Treating “permanent” workers more favourably simply because they are

“permanent”, however, remains prohibited.

41 See section 198C(3).

42 Article 8(3).



Migrant workers

Special problems were noted in respect of non-South African (migrant) workers.43

While neither the Convention nor Recommendation 201 distinguishes between

domestic workers on the basis of nationality or immigration status, all migrant

domestic workers are excluded from the scope of the UIA.44 This constitutes non-

compliance with article 14 Convention 18945 and, very probably, an infringement of

the right of documented migrant workers to equal treatment.46

But the problem goes deeper. For reasons that have been well-documented, it is

likely that the majority if not the vast majority of migrant domestic workers (like

many other categories of migrant workers) are undocumented because they are

ineligible for work permits or residence rights in South Africa. This is symptomatic of

a general disjuncture between immigration law and labour law. 47 However,

provisions in the Convention and Recommendation extending specific protection to

migrant domestic workers are confined to documented workers. The situation of

undocumented migrant workers is not addressed.

The xenophobic attacks on non-South Africans in early 2008 sounded a warning of the ugly

and dangerous hostility towards African migrants that had built up over two decades of

increasing migration which the state has been unable to control. Unfortunately, the

amendments show that the warning has not been heeded. Clause 8 of the Employment

Services Bill (ESB) sets out to protect the employment conditions and opportunities of South

African citizens and permanent residents by restating the restrictions on the employment of

foreign nationals contained in the Immigration Act 13 of 200248 and makes it an offence for

43 See chapter 6 of the book.

44 See section 3(d), UIA.

45 Read with art 6(1)(b) of ILO Convention 97 on Migration for Employment, which requires member

states to extend treatment to documented migrants “no less favourable than that which it applies to

its own nationals” also in respect of unemployment provisions. Unsurprisingly, South Africa has not

ratified Convention 197 but having ratified Convention 189, which expressly cites Convention 97,

and subscribed to the ILO’s decent work agenda of which Convention 97 forms part, it would be

difficult to argue that the exclusion of documented migrant workers from the UIA is justified.

46 See Larbi-Odam v MEC for Education (North-WestProvince) [1997] 12 BCLR 1655 (CC), where

documented non-South African employees were able to establish unfair discrimination on the

ground of nationality.


48 Clauses 8(1) and 9, ESB..



an employer to require or allow a foreign national to do work except in terms of a work

permit.49

The only protection extended to undocumented migrant workers is to confirm (as already

decided by the Labour Court) that they are entitled to enforce claims against their

employers in terms of their contracts of employment or under statutes such as the BCEA.50

Having done so, however, they still face deportation.

The amendments thus perpetuate the disjuncture between immigration law, which seeks to

insulate the South African labour market from the remainder of the continent, and labour

law which is applicable to all employees regardless of their immigration status. The

amendments also disregard the reality of an ongoing movement of non-South Africans into

large parts of the South African labour market which the state has been unable to prevent

and which renders the exclusionary provisions of the Immigration Act ineffectual. It is

suggested that an alternative approach, as argued for in chapter 6 of the book, should be

considered as a matter of urgency.

TOWARDS COLLECTIVE BARGAINING

The provisions of the LRA regulating the right to engage in collective bargaining relate

essentially to bargaining at a sectoral level and in formal workplaces and have little practical

meaning in the domestic work sector (apart from TESs). Sectoral determinations by the

Minister of Labour51 are intended as substitutes for collective agreements in poorly-

organised sectors: they regulate terms and conditions of employment but do not require any

engagement or negotiation with or between workers and employers (though negotiation is

not excluded).

The amendments set out to streamline sectoral bargaining and make organisational rights

more accessible for trade unions in formal workplaces.52 This will not affect domestic

workers. The Minister of Labour will also be authorised to set thresholds by sectoral

determination for trade unions to gain certain organisational rights in a workplace.53 Again,

this will not affect individual domestic workers in private households (where the worker’s

union membership would give the union 100% representivity) but could assist unions in

gaining organisational rights in TESs.

49 Schedule 3, ESB.

50 Clause 8(4), ESB.

51 In terms of ss 51-58 of the BCEA.

52 See LRA ss21, 22, 32 and 49(4).

53BCEA s 55(4)(o).



The Minister will be authorised to prescribe wage increases as well as minimum wages by

sectoral determination.54 However, the Minister already has the power to “amend” sectoral

determinations55 and, in the case of domestic workers, has used this power to increase the

minimum wage laid down in SD 7 on an annual basis. The effect is to benefit but not

empower workers; they may simply be “given” what the Minister considers appropriate

without having any say in the matter other than making submissions at the discretion of the

Director-General of Labour.56

The Minister is also given the power to issue a sectoral determination applicable to

employers and employees who are not covered by any other sectoral determination.57 This

may not directly affect domestic workers, since they are covered by Sectoral Determination

7. It would provide a basis for a minimum wage in every sector, even though it would (as at

present) presumably not be the same in every sector. This would perpetuate the

marginalisation or stigmatisation of sectors, such as the domestic worker, where minimum

wages are routinely set much lower than in other sectors and far below the “minimum living

level” for a family of five.58 It would also perpetuate the disempowerment of workers by not

including them in the process.

Potentially, however, the new provision could have a profoundly empowering effect among

all marginalised workers if it were used to establish a uniform minimum wage and other

minimum rights in all sectors not covered by collective agreements. This presupposes a

rolling process, with the national determination taking effect in sectors as and when existing

determinations expire. To avoid a decline in standards in sectors that had enjoyed better

conditions in terms of previous determinations, it would also be essential to provide for an

inclusive process of negotiation in all sectors to arrive at “actual” conditions.59 This would be

in line with the well-established distinction between minimum conditions and actual

conditions of employment in the South African collective bargaining system and would avoid

the minimum wage becoming a de facto maximum. It would also encourage organisation

and collective bargaining in poorly organised sectors as a practical means of raising living

standards above the minimum.

54 BCEA s 55(4)(b).

55 BCEA, s 56(1).

56 BCEA, s 53.

57 BCEA, s 55(8).

58 Currently estimated at R4 600 per month. The 2013 minimum wage for a full-time domestic

worker (R1 747 per month) equals 38% of this.

59 Section 53 of the BCEA does not prevent such negotiation from taking place but could be

amended to expressly require it in forms appropriate to each sector. The processes envisaged for

the establishment of statutory councils under diverse conditions suggest some ways of approaching

this: see LRA, ss 39-41.



ENFORCEMENT OF MINIMUM CONDITIONS OF EMPLOYMENT

The BCEA Bill seeks to improve the mechanisms for enforcement of basic conditions of

employment. Unfortunately it remains based on the model of the formal, often unionised

workplace where labour inspectors can readily intervene, and does not take account of the

individualised and finely-balanced relationships in which worker such as domestic workers

may often find themselves.60

On the one hand, the powers of Department of Labour in enforcing the BCEA are increased.

The preliminary step of seeking an undertaking to comply from an errant employer is made

discretionary rather than mandatory,61 enabling inspectors to issue compliance orders

immediately. Failing such compliance, an application may then be made to the Labour Court

without further notice to the employer to have the compliance order made an order of

court. Provision for objections to and appeals against compliance orders by employers are

abolished, but the Department’s application to the Labour Court if a compliance order is

disregarded will afford the employer an opportunity to be heard.62

These changes are unlikely to have much effect in the domestic sector, where the practical

difficulty of involving inspectors forms a greater barrier than legal action by employers to

avoid complying with compliance orders.

The amendments further set out to increase penalties for non-compliance. The maximum

penalties in Schedule 2 to the BCEA for non-compliance with any minimum condition of

employment (set in 1997) are increased by 300% and maximum terms of imprisonment for

criminal offences created by the BCEA are doubled.63

These amendments reflect an obvious concern at levels of non-compliance. Evidently, the

thinking is that the graver the penalties, the greater the incentive to comply. From a

normative perspective this is a step in the wrong direction. The ‘command-and-control’

approach which they embody is deeply inimical to developing constructive engagement as

means of promoting the transformative agenda of decent work as well as a culture of

compliance. It also reinforces the assumption that the state must act on workers’ behalf to

the exclusion of agency by workers themselves. The consequences of relying on punitive

measures in the domestic sector are likely to be damaging. However, the amendments do

not remove the power of inspectors to seek to obtain an undertaking to comply from non-

compliant domestic employers. It is to be hoped that inspectors will continue to do so in the

first instance and to appreciate the importance of persuasion as a means towards greater

compliance in contexts such as this.


61 BCEA, s 68(1).

62 BCEA ss 68–73. An undertaking to comply may also be made an order of the Labour Court if an

employer does not comply with it.

63 BCEA, s 93. The most serious penalties relate to child labour and forced labour.



The need for deterrence-based forms of enforcement in any legal system cannot be denied.

However, it should not be the primary means of promoting compliance. Instead, the aim

should be to cultivate a culture where employers recognise the legitimacy of labour

legislation and are willing to comply. Thus, the focus should be on promoting employers’ and

workers’ understanding of and participation in the regulatory process as a means of

safeguarding their respective interests.

THE DISPUTE RESOLUTION SYSTEM

Effective institutions are needed for promoting compliance with the rights of

domestic (and other non-standard) workers, which will need to be accessible as well

as affordable to low-paid workers. The existing dispute resolution mechanisms (the

CCMA, Labour Court, industrial action), while generally accessible to workers in unionised

sectors, fall short of this standard. In practice, the CCMA is accessible to domestic workers

only after they have been dismissed.64 The Labour Court, due to the cost of legal

proceedings, is practically inaccessible to domestic workers, thus preventing them from

pursuing any remedy in disputes that fall beyond the jurisdiction of the CCMA.

The amendments to the LRA go some distance towards addressing these realities. The right

of individual workers who are retrenched to refer disputes to the CCMA instead of the

Labour Court is clarified.65 The CCMA is also given jurisdiction over discrimination disputes

arising from sexual harassment as well as all other forms of discrimination in the case of

workers earning below the BCEA threshold.66 This makes it theoretically possible for

domestic workers to refer disputes relating to discrimination on grounds such as race,

gender or pregnancy (although, as noted below, the EEA arguably narrows down the

protection previously enjoyed by workers against such forms of discrimination).

However, the amendments do not address the fact workers in a highly vulnerable position,

with few job opportunities and locked into employment relationships characterised by

extreme inequality, will seldom if ever feel able to take their employers to the CCMA. The

challenge of designing a dispute resolution system appropriate to sectors such as this

remains on the agenda.

For workers who have dismissed and succeed in getting arbitration awards from the CCMA

in their favour (usually for payment of compensation), the problem remains of employers

simply failing or refusing to comply with the award. The amendments propose ways of

making the enforcement of arbitration awards more effective, by providing for arbitration


65 LRA, s 191(10).

66 EEA, s 10(6).



awards to be treated as writs of execution against the employer’s property,67 and preventing

delaying tactics by employers by taking arbitration awards on review simply to play for time.

This is done by laying down stricter time limits and requiring compliance with the award

pending review unless security is provided.68

COMPENSATION FOR OCCUPATIONAL INJURIES AND DISEASES

ACT (COIDA)

In terms of COIDA, statutory benefits are payable from the Compensation Fund to

employees or the dependants of deceased employees for injuries, diseases or death arising

out of, and in the course of, employment. Although the definition of ‘employee’ in section 1

is broad enough to cover domestic workers, domestic workers employed in a private

household are expressly excluded from the scope of COIDA. Section 35 of COIDA provides

that the injured or ill employee’s claim against the Compensation Fund substitutes all other

legal remedies for loss of income due to the injury or illness. Employees covered by COIDA

are therefore barred from suing their employers for loss of income due to an occupational

injury or disease. As domestic workers are excluded from the scope of COIDA, they have no

claim against the Compensation Fund and are left with the remedy suing their employers at

common law for injuries suffered at work. This, however, is cold comfort since domestic

workers are exactly the type of vulnerable employees who cannot afford litigation against

their employers, whom COIDA sets out to protect.69

It has been argued that the exclusion of domestic workers from the scope of COIDA is

unjustifiable in terms of the Constitution as well as Convention 189. In 2010 the advisory

committee of the SA Law Reform Commission, noting the exclusion of domestic workers

from COIDA, observed that there were “public policy reasons” for this but that “a review of

the exclusion may be warranted”.70 In response to a submission by Social Law Project in

November 2010, urging the inclusion of domestic workers in line with Convention 189, the

SALRC in October 2011 recommended a review of the exclusion of domestic workers from

the application of COIDA by NEDLAC.71 Already in September 2011, however, Labour

67 LRA s 143(1). The costs of such proceedings will be on Magistrate’s Court scale rather than the

higher Labour Court scale: s 143(5). If an employer fails to comply with an order of reinstatement,

contempt proceedings may immediately be instituted in the Labour Court: s 143(4).

68LRA ss 145(5)-(10) and 158(5). Applications to the Labour Court while arbitration proceedings are

ongoing are also, in principle, excluded: s 158(1B).

69 The topic is discussed further in chapter 4 of the book.

70 South African Law Reform Commission (SALRC) Discussion Paper 117 Statutory Law Revision, par

2.151.

71SALRC report on legislation administered by Department of Labour, Project 25: Statutory Law

Revision, October 2011.



minister Mildred Oliphant had declared that the Department of Labour intended extending

COIDA to include domestic workers.72 In the 2013 Budget Debate on Labour it was reiterated

that “[t]he proposed changes to the Compensation for Occupational Injuries and Diseases

Act, COIDA, will see domestic workers and farmworkers covered by these protective

measures”.73

Despite these statements it is unclear what steps, if any, have been taken to set the review

by NEDLAC in motion and/or draft the amendment in question. Inquiries addressed to the

Department of Labour have thus far elicited no concrete information.

THE EMPLOYMENT EQUITY AMENDMENT BILL

As noted already, the EEA Bill proposes that disputes involving sexual harassment, as well as

unfair discrimination disputes where the complainant earns less than a prescribed amount

may be referred to arbitration as well as to the Labour Court.74 A commissioner is given the

same power as the Labour Court in ordering a remedy for unfair discrimination, save that a

limit is placed on damages that may be ordered.75

Other amendments that may affect domestic and other vulnerable workers, positively as

well as negatively, are the following:

Definition of “discrimination” broadened

Section 6(1) is amended to state that discrimination may be prohibited not only on a ground

listed in this section or on a similar ground but also on any other “arbitrary” ground. This

creates consistency with the terminology used in section 187(1) (f) of the Labour Relations

Act 66 of 1995 that prohibits dismissal on “arbitrary” grounds.

A new section 6 (4) expressly prohibits discrimination in the terms and conditions of

employment of employees “performing the same or substantially the same work or work of

equal value” that is directly or indirectly based on any of the listed grounds.

72 Department of Labour ‘COIDA will be Extended to Include Domestic Workers’

http://www.sabinetlaw.co.za/labour/articles/coida-will-be-extended-include-domestic-workers

(accessed 14 December 2011).

73Debate on Budget Vote No 18 – Labour, 22 May 2013. 74 EEA, s 10(6).

75 EEA, s 48(2). The powers are to order payment of compensation or damages by the employer to

that employee, or to direct the employer to take steps to prevent the same unfair discrimination or

a similar practice occurring in the future in respect of other employees.

http://www.sabinetlaw.co.za/labour/articles/coida-will-be-extended-include-domestic-workers



Neither amendment will make a significant different in practice. The prohibited grounds of

discrimination in the existing section 6(1) are already comprehensive and the addition of

“arbitrary” grounds is likely to be relevant only in borderline cases. Discrimination in terms

and conditions of employment, as described in the new section 6(4), was already prohibited

in terms of section 6(1).

Protection against discrimination redefined

The defences available to an employer charged with unfair discrimination have thus

far been that the measure in question was not based on any prohibited ground, or

that it was an affirmative action measure, or that it was based on an inherent

requirement of the job in question.76 Section 11(1) is now being amended to allow

employers a defence against claims of discrimination on prohibited grounds

provided “such discrimination” is found (by the judge or commissioner) to be

“rational and not unfair” or “otherwise justifiable”.

If “such discrimination” is interpreted as referring to actual discrimination, this could make it

possible for an employer (for example) to refuse to employ a domestic worker who refuses

to undergo an HIV test (discrimination on the ground of HIV status). It could also allow

employers’ personal convenience or commercial interests to outweigh a worker’s right to

equality and dignity – for example, refusing to employ a worker who is contemplating

starting a family or refusing to employ a black worker on the grounds that members of the

family will find it unacceptable.

Such discrimination is prohibited in terms of international law77 by which South Africa is

bound. The only way of avoiding a conflict of this nature is by interpreting “such

discrimination” as referring to discrimination that has been alleged but not proven. It

remains to be seen what the courts will make of it.

Psychometric testing

Section 8 of the EEA is amended to provide that only psychometric tests that have been

certified by the Health Profession Council of South Africa, or another body which is

authorised to certify such tests, may be used in tests of employees. This will affect domestic

workers only in rare situations where employers require them to perform tests of this

nature.

76 Section 6(2), EEA.

77 ILO Convention 111 of 1958.



THE UNEMPLOYMENT INSURANCE ACT

Domestic workers working for an employer for more than 24 hours a month have been

covered by the Unemployment Insurance Act78 since 2002.79 Workers working less than 24

hours a month for an employer, however, are excluded.80 On 19 July 2013 the Minister of

Labour published proposed amendments to the Unemployment Insurance Act, 2001 for

general information and presentations.81 The exclusion of workers “employed for less than

24 hours a month with a particular employer, and their employers” is maintained.

CASE LAW

A judgment handed down by the Labour Appeal Court in Apollo Tyres South Africa

(Pty) Ltd v CCMA and others82 could have important implications for domestic

workers and other vulnerable workers. The background is that the CCMA has no

jurisdiction to arbitrate claims based on breach of the employment contract. Such claims can

be referred to the Magistrate’s Court or the Labour Court or the High Court, but very few

domestic workers could afford to do so.

However, the CCMA does have jurisdiction to arbitrate disputes about “unfair labour

practices”, including “unfair conduct by the employer relating to the provision of benefits to

an employee”.83 In the Apollo matter the court found that the definition of “remuneration”

in the LRA84 “is wide enough to include wages, salaries and most, if not all extras or benefits”

(at para 25 of the judgment).

If this is so, any “unfair conduct” by the employer relating to the “provision” of wages and

salaries can be challenged in the CCMA. This could include situations such as the following:

78 Act 63 of 2001.

79 The payment of Unemployment Insurance Fund contributions by employers is regulated by

Chapter 2 of the Unemployment Insurance Contributions Act 4 of 2002.

80 UIA, s 3(1)(a), and see discussion in chapter 4of the book.

81 Government Gazette, 19 July 2013, No. 36674, Notice 738 of 2013.

82[2013] 5 BLLR 434 (LAC); (2013) 34 ILJ 1120 (LAC).

83 LRA, s 186(2)(a).

84 I.e., “any payment in money or in kind made or owing to any person in return for that person

working for any other person”: s 213, LRA.



Failure by the employer to give a wage increase that is contractually due;

Underpayment or a wage cut by the employer; or

Requiring an employee to perform duties beyond her job description.

Not only would approaching the CCMA be affordable to domestic workers; the LRA also

provides scope for a more flexible remedy based on the facts of the case, including

compensation that is “just and equitable in all the circumstances, but not more than the

equivalent of 12 months remuneration”.85

This is in addition to the existing right of an employee claiming unfair dismissal to also claim

any amount owing in terms of the BCEA (for example, arrear wages) provided the claim has

not prescribed.86

85 LRA, s 194(4).

86 BCEA, s 74.



BIBLIOGRAPHY

BOOKS D du Toit (ed) Exploited, Undervalued – and Essential: Domestic workers and the realisation of their rights (2013) Pretoria University Law Press CASES Apollo Tyres South Africa (Pty) Ltd v CCMA and others 2013] 5 BLLR 434 (LAC); (2013) 34 ILJ 1120 (LAC) City of Tshwane Metropolitan Municipality v SALGBC (2012) 33 ILJ 191 (LC) Larbi-Odam v MEC for Education (North-WestProvince) [1997] 12 BCLR 1655 (CC “Kylie” v CCMA [2010] 7 BLLR 705 (LAC) (2012) 33 ILJ 191 (LC) SANDU v Minister of Defence [1999] 6 BCLR 615 (CC) White v Pan Palladium SA (Pty) Ltd (2006) 27 ILJ 2721 (LC) GOVERNMENT GAZETTES Government Gazette 17 December 2010, Notice 1112 of 2010 Government Gazette, 19 July 2013, No. 36674, Notice 738 of 2013 LEGISLATION Basic Conditions of Employment Act 75 of 1997 Compensation for Occupational Injuries and Diseases Act 130 of 1993 Employment Equity Act 55 of 1998 Employment Services Bill of 2012 (ESB) Immigration Act 13 of 2002 Labour Relations Act 66 of 1995 Labour Relations Act Bill 20 August 2013 Sectoral Determination 7 Unemployment Insurance Act 63 of 2001 Unemployment Insurance Contributions Act 4 of 2002 INTERNATIONAL INSTRUMENTS Convention 189 International Labour Organisation (ILO) Convention 111 of 1958 International Labour Organisation (ILO) Convention 97 OTHER Debate on Budget Vote No 18 – Labour, 22 May 2013 PAPERS South African Law Reform Commission (SALRC) Discussion Paper 117 Statutory Law Revision REPORTS SALRC report on legislation administered by Department of Labour, Project 25: Statutory Law Revision, October 2011



WEBSITES Department of Labour ‘COIDA will be Extended to Include Domestic Workers’ http://www.sabinetlaw.co.za/labour/articles/coida-will-be-extended-include-domestic-workers (accessed 14 December 2011)

Critical update of new/amended laws applicable to domestic workers and other precarious workers...

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