While some provisions of the new National Minimum Wage Act (NMWA) applied from January 1 this year, those pertaining to domestic workers will apply only on January 1, 2021, when all employers must pay the R20-an-hour minimum wage.
The NMWA was negotiated at the National Economic Development and Labour Council, which started deliberations four years ago. The parties agreed to a phase-in period for farm, forestry and domestic workers.
Labour consultant Bernard Reisner, of Cape Labour and Industrial Consultants, says that apart from the NMWA, the employment of domestic workers is governed by sectoral determinations issued by the Department of Labour.
Sectoral Determination 9: Domestic Worker Sector, which was promulgated 16 years ago, stipulates that any domestic employee who works more than 27 hours should be paid not less than R13.05 an hour, R587.40 a week and R2545.22 a month in major metropolitan areas. In other areas, the rate is R11.89 an hour, R534.91 a week and R2317.75 a month. These amounts are increased annually.
“Domestic worker” refers to any employee performing domestic work in the home of their employer, including gardeners, people employed by a household to drive a motor vehicle, and those who take care of children, the aged, sick, frail or disabled.
“The annual wage increases for domestic workers have, over the past 16 years, been marginal. The employees in this sector are exploited, undervalued, vulnerable, subject to job insecurity, receive low pay, work long hours, and many do not even receive the minimum standard and conditions in terms of the sectoral determination,” Reisner says, who recalled one of the cases he was involved in.
Suzanne Visser*, an unemployed domestic worker, was lured to Cape Town from Clanwilliam by Jan Swanepoel*, the owner of an employment agency, with a promise of a well-paid job in Camps Bay.
Swanepoel paid her transport costs of R300 and promised her a salary of R2500 a month, free accommodation and food. He said he would give Visser an employment contract and register her with the Unemployment Insurance Fund, none of which materialised despite repeated requests by Visser.
She was paid well below the minimum wage under the sectoral determination with which she had to support her family in Clanwilliam. Visser turned to the labour department and lodged a complaint against her employer and Swanepoel.
Despite the intervention of a labour inspector, neither Swanepoel nor the employer was willing to sign an undertaking to comply with the law. The inspector issued a compliance order, which both ignored. The matter was referred to the Labour Court, and the judge ordered that they comply with the labour inspector’s requirements.
As a result, Visser’s salary was increased in accordance with the minimum wage, she received all short payments, an employment contract, payslips and other benefits prescribed by Sectoral Determination 9: Domestic Worker Sector.
Reisner says all businesses have to pay a minimum R20 an hour from January 1. “Still, they could apply for an exemption to show they cannot afford to pay the minimum, and they would have to show their financial records to prove they can’t afford to pay the minimum wage.
“There is no doubt exemptions will be approved. But if employers are unable to pay the hourly rate, they may have to retrench workers, and many employers will also no longer recruit new staff as a result of the new legislation.”
The same applies to employers of domestic workers.
“Employers may decide to do the work themselves, or employ domestic workers on an ad hoc basis,” he says.
However, employers who use the services of domestic workers have to comply with the law as prescribed by Sectoral Determination 9.
Cleaners employed by businesses to clean offices fall under Sectoral Determination 1: Contract Cleaning Sector. A cleaner is entitled to a minimum of R20 an hour with effect from January 1.
Carers, however, fall in the same category as domestic workers.
Reisner does not believe officials of the Department of Labour have the capacity or the resources to enforce the legislation in terms of the NMWA or the sectoral determinations.
“Up until now they have never had sufficient resources to police the domestic worker sector,” he says.
“Although no direct action may be taken against employers who fail to act in accordance with the NMWA, labour inspectors can issue a written undertaking asking the employer to comply with the legislation, failing that they will issue a compliance order.
“If the employer fails to adhere to the compliance order, the labour inspector will ask the Labour Court to make it an order of court. Once this is served, he has no choice but to comply, or the sheriff of the court can take appropriate action to attach the employer’s assets,” Reisner says.
Domestic workers can take action against employers who transgress the law by approaching the Department of Labour or the Commission for Conciliation, Mediation and Arbitration.
Cape Labour and Industrial Consultants issues a booklet that sets out the rights contained in the Sectoral Determination 9: Domestic Worker Sector, as well as the NMWA tables. Email [email protected] for a free copy or phone 0214233959.