Working conditions of domestic workers are regulated by Sectoral Determination 7 and the Labour Relations Act. (See Sectoral Determinations)

NOTICE PERIOD AND TERMINATION OF EMPLOYMENT

Any party to an employment contract must give written notice as follows (except when an illiterate employee gives it):

• One week – if employed for 6 months or less
• Four weeks – if employed for more than 6 months

Notice must be explained verbally by or on behalf of the employer to a domestic employee if they are not able to understand it.

If the domestic worker lives in accommodation provided by the employer then the employer must give them one month’s notice to leave the accommodation or until the contract of employment could lawfully have been terminated.

All money that is owed 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 their economic, technological, or structural set-up (called operational requirements in the Sectoral Determination) is responsible to pay severance payment to the employee.

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 for Unfair Dismissal within thirty calendar days of their termination.

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 their services.

The Labour Relations Act sets out the procedures that must be followed when a person’s services are terminated.

WAGE/REMUNERATION/PAYMENT

All employers of domestic workers throughout South Africa have to pay their employees a minimum wage of R27.58 per hour

GUARANTEED MINIMUM RATE

Some domestic workers might work less than 4 hours per day. If this is the case, they should be paid for 4 hours worked.

ANNUAL INCREASE

Wages are normally increased every year and the new wage increases are published by the Department of Employment and 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 to make it the same as the minimum wage because it will be an unfair labour practice.

EXAMPLE: 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

(She must be paid at the minimum wage rate)

= 30 hours per week x R27.58

= R827.40 per week

Additional payments (such as for overtime or work on Sundays or Public holidays) are calculated from the total remuneration.

TRANSPORT ALLOWANCE

The Sectoral Determination does not regulate transport so it is open to negotiation between the parties.

HOURS OF WORK

NORMAL HOURS (EXCLUDING OVERTIME)

A domestic worker may not work more than:

• 45 hours per week
• 9 hours per day for a 5-day work-week
• 8 hours a day for a 6-day work-week

OVERTIME

Overtime is voluntary and a domestic worker may not work more than:

• 15 hours overtime per week, and
• 12 hours on any day, including overtime.

Overtime is paid at one and a half times the employee’s normal wage or an employee may agree to take paid time off.

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.

STANDBY

Standby means any period between 8 p.m. and 6 a.m. when a domestic worker might need 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 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.

NIGHT WORK

• Night work means work performed after 6 p.m. and before 6.a.m.
• Night work is allowed only if the domestic worker has agreed to this in writing.

The employee must be compensated by an allowance of at least 10% of the ordinary daily wage.

MEAL INTERVALS

A domestic worker is entitled to a one-hour break for a meal after five hours of 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 their meal interval, then they must be paid for this.

WORK ON SUNDAYS

Work on Sundays is voluntary and a domestic worker 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 they should be paid one and a half times the wage for every hour worked, with a minimum of the normal rate for the full day. If the parties agree, the employee can be paid by giving them time off of one and a half hours for each overtime hour worked.

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 worker may not be forced to work. The official public holidays are: New Year’s Day, Youth Day, Human Rights day, National Women’s Day, Good Friday, Heritage Day, Family Day, Day of Reconciliation, Freedom Day, Christmas Day, Workers’ Day, Day of Goodwill.

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 they must be paid double the normal day’s wage or if it is greater, double time for each hour worked on that public holiday.

LEAVE

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.

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:

• For more than two days in a row, or
• On more than two occasions during an 8-week period and does not produce a medical certificate stating that they were too sick or injured to work. The certificate can be from a doctor, a traditional healer or a qualified nurse.

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.

PARENTAL LEAVE

In terms of section 25A of the BCEA, an employee who is a parent of a child and not the designated Carer of the Child, will be entitled to 10 consecutive days’ unpaid parental leave during each leave cycle. Parental leave can start on the day that the child is born, or, if the child is adopted, the date the adoption order is granted or the adoptive child is placed in the care of the parents, whichever comes first. The 10 consecutive days parental leave are calendar days, not working days. An employee must notify the employer in writing of the date on which they intend to start their parental leave and return to work after parental leave. This notification must at least be given 1 month before the birth of the child or whenever it is practical to do so. An employee who contributes to the UIF may apply for parental benefits from the Department of Employment and Labour.

FAMILY RESPONSIBILITY LEAVE

Employees 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: When the employee’s child is sick If any one of the employee’s relations dies: a spouse or life partner; a parent, adoptive parent or grandparent; a child, adopted child or grandchild; a brother or sister

DEDUCTION FROM THE REMUNERATION

An employer is not allowed to deduct any monies from the employee’s wages without their 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
• Has at least one window and door, which can be locked
• Has a toilet and bath or shower, if the domestic employee does not have access to any other bathroom.

OTHER ISSUES

Other issues that are not dealt with in the Sectoral Determination include:

• Probationary periods
• Right of entry to the employer’s premises
• Afternoons/weekends off
• Pension schemes
• Medical aid
• Training/school fees
• Funeral benefits/saving accounts

These can all be negotiated between the parties and included in the contract of employment.

PROHIBITION OF EMPLOYMENT

No one under the age of 15 can be required or permitted to work.

OTHER CONDITIONS OF EMPLOYMENT

There is no provision which prevents other conditions of employment from being included in a contract of employment but any new conditions may not be less favourable than those set by the Sectoral Determination.

GENERAL ADMINISTRATIVE REQUIREMENTS

The Sectoral Determination states that employers must comply with the following administrative processes:

• Provide employees with a written contract of employment
• Payment must be made by cash in a sealed envelope or EFT deposit into the employee’s bank account, and must include a detailed payslip. The employer must keep copies of these payslips for 3 years.

(See www.labour.gov.za and click on Sectoral Determination for Domestic Worlers for more information.)

EXAMPLE: DOMESTIC WORKER CONTRACT OF EMPLOYMENT

Name of employer ………………………………………………………….

Address of employer…………………………………………………………

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: ……………………………………………………………….

Duties: ………………………………………………………………..

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.

Meal intervals will be from: ……………….. to………………………

Other breaks: …………………………..

Saturdays: ……………………….. a.m. to p.m

Meal intervals will be from: ……………….. to………………………

Other breaks: …………………………..

Sundays:…………………………. a.m. to p.m

Meal intervals will be from: ……………….. to………………………

Other breaks: …………………………..

4.2 Hours of work will be extended 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 Clauses 5.1 and 5.2 of this contract.

4.4 Standby will only be done if agreed from time to time whereby an allowance will be paid per standby shift.

5. WAGE

5.1 The employee’s 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:

– Accommodation per week/month to the value of R ……………………

– Food per week/month to the value of R ……………………

5.3 The following deductions are agreed upon:

R ……………………

R ……………………

5.4 The total value of the above remuneration shall be : R …………………… (the total of clauses 5.1 to 5.2 – change or delete clauses as needed)

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 week’s 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 employee who resides in accommodation that belongs to the employer accommodation for a period of one 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 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. During the first 6 months of employment the employee will be entitled to one day’s paid sick leave for every 26 days worked. The employee is to notify the employer as soon as possible in case of his/her absence from work through illness. 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

(Tick the applicable clauses in the space provided) The employee will be entitled to months maternity leave without pay, OR The employee will be entitled to ……… months maternity leave on pay

12. PARENTAL LEAVE

An employee is entitled to 10 consecutive days (calendar days) unpaid parental leave during each leave cycle. Parental leave can start on the day that the child is born, or, if the child is adopted, the date the adoption order is granted, or the adoptive child is placed in the care of the parents, whichever comes first.

13. FAMILY RESPONSIBILITY LEAVE

The employee will be entitled to three days family responsibility leave during each leave cycle if they work on at least 4 days a week and have worked more than four months for the employer.

14. ACCOMMODATION

(Tick the appropriate box)

14.1 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.

14.2 The accommodation may only be occupied by the employee and their immediate family, unless by prior arrangement with the employer

14.3 Prior permission should be obtained for visitors who wish to stay the night. However, where members of the employee’s direct family are visiting, such permission will not be necessary.

15. 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.

16. GENERAL

Any changes to the written contract will only be valid if agreed by both parties. …………………………………………..

EMPLOYER ………………………………………….. Date: ……………………..

EMPLOYEE (Signed in acknowledgement of receipt)