Although the North Gauteng High Court handed down an order on May 23 that the exclusion of domestic workers from the Compensation for Occupational Injuries and Diseases Act (COIDA) was unconstitutional, the uphill battle to have the law changed is continuing.
Myrtle Witbooi, the president of the International Domestic Workers Federation and general secretary of the South African Domestic Service and Allied Workers’ Union, says the union has been asking for domestic workers to be included in COIDA from as far back as 2002.
She says that back then domestic workers did not have a minimum wage, which meant that employers could pay whatever they wanted, sometimes as little as R100 a month. Today, under the recently introduced National Minimum Wage Act, the minimum is R2625 a month.
“The government ratified International Labour Organisation (ILO) Convention 189 (dealing with the rights of domestic workers worldwide) in June 2013, which meant that they had a year to include domestic workers in COIDA. We had several campaigns, but all we got were promises. In 2016, the government told the ILO that COIDA would be extended to domestic workers, and it was gazetted in 2018. It is now 2019, and we are still waiting,” says Witbooi.
Labour expert Bernard Reisner, of Cape Labour & Industrial Consultants in Cape Town, says the bill amending COIDA, which was published by the Minister of Labour for public comment last year, proposes to extend compensation benefits to domestic workers, who, under the current dispensation, are precluded from claims for death, injury or illness sustained while employed in private households. COIDA expressly excludes domestic workers from the definition of employee.
“The COIDA amendments are in line with international labour standards. Both domestic employers and employees will be required to register as such, under the provisions of the amended Act. One of the significant amendments is the reintegration of injured or diseased employees into the workplace; another is the improvement of some benefits,” says Reisner. “Domestic workers have always been a marginalised, vulnerable and exploited group who have failed to organise themselves adequately to protect their interests.”
COIDA, as amended, will apply to all employers, and to casual and full-time workers who sustain workplace accidents (are injured, disabled or killed), or work-related diseases.
An occupational injury is any injury resulting from an accident arising from work. The most commonly reported injuries are bruises, sprains, cuts and burns.
An occupational disease is a chronic ailment from exposure to risk factors at work. Asthma, skin diseases and diseases caused by chemical and biological agents are among the most commonly reported.
“Once the bill comes into effect, employers of domestic workers will need to register with (the labour body) COID (see ‘What is COID?’). They need to become au fait with the Act, which will protect the rights of both employer and domestic worker in households,” says Reisner, who believes that labour officials will have an onerous task enforcing the amendments, as they are already overburdened with enforcing other laws that fall under their umbrella.
Once the bill has been promulgated, which Reisner thinks may be towards the end of the year, it will take immediate effect. But it won’t be retrospective.
Witbooi says domestic workers believe it is unjust and unfair that they are excluded from some of the labour laws, and, if they are included, they typically have fewer benefits.“Because they (are not able to engage in) collective bargaining, they can only rely on the honesty of the employer to pay them the right wage. As a union, we have an enormous task to ensure that workers know their rights. While we have been fighting for domestics to be included in COIDA, many women have lost their lives or have been injured while on duty and have received no compensation at all. About six years ago, a domestic worker who was washing windows fell into a swimming pool and drowned. She was the sole provider for her children. The case went to the Labour Court, in 2018, after several delays, but (her family) got no compensation,” Witbooi says.
Referring to the North Gauteng High Court decision, Witbooi points out that the order still doesn’t give domestic workers or their families any compensation. The court ruled only it was unconstitutional for domestic workers to be excluded from COIDA.
“The case will only go back to court in October. Meanwhile, we are going to step up our protest action to put pressure on the government to approve the amendments. We are also pushing for a meeting with President Cyril Ramaphosa.”
Reisner says that since January thousands of domestic workers across South Africa have lodged complaints, with the Commission for Conciliation Mediation and Arbitration against employers who have failed to pay the minimum wage (27 ordinary working hours or more a week, R15 an hour; less than 27 hours, R16.03). All the complaints were successfully resolved by the commissioners, either telephonically or at conciliation and arbitration hearings, he says.
Witbooi says domestic workers deserve to be protected and paid a reasonable wage. “Domestic work is decent work, and deserves decent pay,” she says.
WHAT IS COID
Compensation for Occupational Injuries and Diseases (COID) is a government body that compensates workers who have been injured, or who have contracted a disease at work.
COID is similar to an insurance policy. Companies pay premiums based on their industry classification. It exists to prevent workers having to go to a civil court (and pay large legal costs) to sue their employers when injured or sick.
The Compensation for Occupational Injuries and Diseases Act sets out the legal requirements for tariffs, compensation and the limitations for claims for workers who are injured, or who contract diseases while they’re at work.
According to the Act, workers who suffer from a work-related disease or injury have the following rights:
* The right to full free medical attention, including free transport to a hospital.
* Compensation for loss of income due to workplace injury or disease (temporary disability).
* Compensation for permanent loss of normal body functioning following a workplace injury or disease (permanent disability).
* Benefits payable to family in the case of the death of a worker due to workplace injury or disease.
* Increased compensation if the workplace injury or disease arose out of negligence on the part of the employer or a fellow employee.
* Compensation if the workplace injury or disease was caused by a third party but arose during the course of the duties of the employee.