The relationship between a person and their domestic worker is often misunderstood. The reason for this can be that the domestic worker works in the personal sphere of the person employing the domestic. Some consider it to be an informal relationship which sits outside the ambit of the employer/employee relationship and as such the rules and regulations may not apply. This is a common misconception which we attempt to clarify.
A domestic worker can be defined as “an employee whose work is to do domestic work in a domestic dwelling or a place which is mainly used to live in and are paid or entitled to receive remuneration.” Included are gardeners, personal drivers and persons who look after the sick, aged or children.
Should a person therefor employ someone as described above, regardless for the length of time, they are considered employers of the domestic workers and must comply with applicable legislation.
The relationship between a person and their domestic worker is regulated by the Basic Conditions of Employment Act (BCEA) read along with a document commonly known as Sectoral Determination 7, a ministerial determination specifically regulating the domestic worker segment. The regulations contained in the Sectoral Determination are mandatory and any agreement made between parties which is less favourable to the domestic is invalid.
Broadly speaking the Determination regulates five main areas which will be discussed below: Wages, Written particulars of employment, Hours of work, Leave entitlements and fair termination procedures.
The Sectoral Determination prescribes minimum wages which must be paid to domestics. Currently the rate is R10.59 per hour or R 2065.47 per month if your domestic is employed up to 45 hours per week. This rate applies to urban municipal areas. On the 30th November this minimum rate will increase by CPI+2.5%.
The wage of a domestic must be calculated on the basis of the number of hours he or she normally works. A weekly wage is calculated by dividing a monthly salary by 4.33 and a daily wage by dividing the weekly wage by the number of days the domestic works in a week. The hourly wage is calculated by dividing the daily wage by the number of hours a domestic ordinarily works in a day.
When paying your domestic, he or she must also receive a statement (pay slip) setting out certain details including the employer’s address, number of ordinary and overtime hours worked and any deductions which were made. The domestic must be paid in South African currency.
No deduction can be made without the permission of your domestic. The only permissible deductions are those allowed by the Sectoral Determination. No deduction is permissible for meals provided to the domestic.
Written particulars of employment
The sectoral determination compels the employer to issue the domestic worker with written particulars of employment. Although these particulars do not necessarily take the form of a contract, it is recommended. The document must include at least the following details:
- The full name and address of the employer;
- the name and occupation of the domestic worker, or a brief description of the work for which he/she is employed;
- the place of work, and where he/she is required or permitted to work;
- date of employment;
- the domestic worker’s ordinary hours of work and days of work;
- the domestic worker’s wage or rate and method of payment;
- the rate of pay for overtime work;
- any other cash payments he/she is entitled to;
- any deductions to be made from wages;
- the leave he/she is entitled to;
- the period of notice required to terminate employment, or if employment is for a specified period; and
- the date when employment is to terminate.
Hours of work
Your domestic worker may not be asked or required to work more than 45 hours per week. Nor may a domestic worker be required to work more than 9 hours per day for a 5 day working week or 8 hours per day for a six day working week.
When it comes to overtime, your domestic worker may not be required to work overtime unless he/she agrees to it. The maximum amount of overtime a domestic worker may be permitted to work is 15 hours per week, or more than 12 hours on any day. Overtime must be paid at 1.5 times the employee’s normal daily wage.. Should a domestic worker be required to work on a Public Holiday or Sunday he/she must be paid 2 times their normal daily wage unless the domestic worker normally works on a Sunday, in which case they must be paid 1.5 times their normal rate.
Should your domestic worker be required to work after 6pm or before 6am he/she must agree thereto. Should the domestic worker not be live-in, transportation must be available. The domestic must be paid an allowance.
A contract of employment may be terminated only on notice of not less than one week if the domestic worker has been employed for six weeks or less. If the domestic has been employed for longer than 6 month, notice of four weeks is required.
An employer may dismiss an employee due to a change in his/her economic, technological or structural needs (operational requirement). One week’s pay for every completed year of continuous service must be paid. Severance pay is payable only, if there was no alternative employment.
If the employer of a domestic worker who resides at the workplace or in other accommodation supplied by the employer terminates the contract of employment of that domestic worker before the date on which the employer was entitled to do so, the employer is required to provide the domestic worker with accommodation for a period of at least one month.
ABOUT THE AUTHOR:
Stephen Kirsten obtained his LLB degree at UNISA in 2010 and joined the SEESA Labour in September 2013 as a legal advisor. Stephen was promoted to Senior Legal Advisor on 1 March 2014.