“You know what would make housekeeping way more fun – hiring a domestic worker” (quote by author unknown)
In today’s economic challenges, both parents, in most cases, have to work. House work and raising children is a challenge and job on its own. Domestic workers are therefore an integral part of our lives. “One person caring about another represents life’s greatest value” (quote by Jim Rohn). Domestic workers help us manage our homes and raise our children. It’s only fair-minded that they are appreciated and preserved with the reverence and professionalism with which we bestow on other workforces.
Like any other workforces, domestic workers (hereinafter referred to as ‘workers”) are permitted to certain rudimentary benefits.
Most people hate house work. “I hate house work. You make those beds; you wash the dishes and [the next day] you have to start all over again” (quote by Joan Rivers). So instead of doing it ourselves, we employ domestic workers to attend to the mundane upkeep of the home that we dislike so much.
In this article, I shall highlight important aspects employers should note when entering into an employment contracts with their domestic workers.
1.1. LABOUR RELATIONS ACT
Labour Relations Act made anticipated changes, which still needs to be adopted by parliament, but it is important for employers to familiarize themselves with them and evaluate their possible impact on the business.
The projected changes to the Labour Relations Act are intended to reinforce collective bargaining and preventing picketing as a way of attending to violent strikes. It will be mandatory for Trade Unions and Employers Organisations to make provision in their constitutions for a poll of followers before boarding on a foray or lockout.
1.2 BASIC CONDITIONS OF EMPLOYMENT ACT (“ACT”)
The situation of domestic workers is structured by the Basic Conditions of Employment Act, which is required to be read along with the Sectoral Determination governing the Domestic Worker Sector. The rules that are set out herein must be replicated in the agreement of employment. Any requirements or circumstances which are less favourable than those set by the Determination are unacceptable and illegal.
Many South Africans hire domestic staff, but they frequently don’t accomplish their prescribed duties as employers such as having an employee contract correctly recording annual leave and sick leave, as well as making the applicable contribution to the Unemployment Insurance Fund (UIF). “Employee loyalty begins with employer loyalty. Your employees should know that if they do the job they were hired to do with a reasonable amount of competence and efficiency, you will support them” (quote by Harvey Mackay).
The Act will remain to control the straightforward terms and conditions of employ. Nevertheless, the Basic Conditions of Employment Amendment Bill (2017) presents alterations to the Act that deliver for implementation measures in the event of non-compliance with the National Minimum Wage Bill.
1.2.1. Imperative features of BCEA
Below are five of the furthermost imperative features of the new laws:
(a) Minimum hours of work
This section affords that a worker, who works for a reduced amount of four hours on any day, will be permitted to be paid for four hours of work, if conditions outside the control of the employee thwart work from being done.
(b) Allowance of the jurisdiction of the CCMA
These requirements will permit employees receiving below the wages threshold to raise disagreements to the CCMA and is intended to afford a more cost active and speedy process of deciding disagreements of this nature.
(c) National minimum wage
The anticipated minimum wage is R20,00 for respectively ordinary hour worked and will establish a term of the employee’s contract excluding to the degree that the employee’s contract or a collective agreement affords for a wage that is additionally favourable to the employee.
TYPES OF DOMESTIC WORKERS
2.1. REGULAR DAY WORKERS
Regular day workers are people hired on not more than three days in any week by the same employer for a period of not less than four consecutive weeks. The situation of regular workers is in all customs are the same as that of other domestic workers, excluding that the laws amendable to notice of expiry of employment don’t apply to them.
2.2. DOMESTIC WORKERS WHO LIVE IN OR WORK FOUR-PLUS DAYS
Laws relating the spread-over of working time, working hours, meal intervals, maximum overtime, and announcement of termination of employ. As soon as a domestic worker begins to work, the employer must deliver her with the details set out in Section 9 of the Sectoral Determination. If a domestic worker doesn’t comprehend the printed details, the employer must confirm that they are described to her in a language and in a way that is understood.
3. SALARY OF DOMESTIC WORKERS
“To work for salary is to give out your life for little compensation” (quote by Sunday Adelaja)
The Department of Labour printed the National Minimum Wage Bill that is set to announce a minimum wage of R20 for each normal hour worked from May 2018.
We live in an economically struggling period of an influx of unemployment. Noting this, one should not use underpaying staff due to the fact that they are desperate for money. Remember when you pay an individual, you on not only paying for their sustenance of food and shelter but so much more. “A good job is more than just a pay-check. A good job fosters independence and discipline and contributes to the health of the community. A good job is a means to provide for the health and welfare of [a] family, to own a home, and save for retirement” (quote by James H. Douglas Jnr).
The salary of a domestic worker is well-defined to embrace all payments made in cash or in kind for her employment. The minimum wage that you can recompense to a domestic worker is set by the Sectoral Determination for the Domestic Worker Sector, and it rises annually. For 2018, the legal minimum amount for anyone in a large city or town, who works more than 27 hours per week is R13.05 per hour (a minimum of R2 545.22 per month for full-time employment). For an employee who works less than 27 hours per week, the minimum rate is R15.28 per hour.
However, although this is a legal minimum, it is not a market-related wage, and ought to be only used as a preliminary point for employees with no practice or training. “Salary is the compensation you get for giving your life” (quote by Sunday Adelaja)
The salary of a domestic worker must be calculated on the foundation of the number of hours she normally works.
Along with the salaries, the employer must provide the domestic worker a pay slip indicating the following:
- the employer’s address,
- the domestic worker’s name and profession,
- the period she is being paid for,
- the salary rate,
- the overtime rate,
- the number of regular and overtime hours worked during that period,
- the worker’s total wage and
- Any deductions made must be comprehensive.
“Culture is about performance, and making people feel good about how they contribute to the whole” (quote by Tracy Streckenbach).
Overtime is not compulsory. Many staff agree to overtime for extra income and growth in the ladder of their profession. “I’ll work overtime to open the doors of opportunity to industry and commerce” (quote by Allan Audry).
Anyone who works additional hours than the arranged working hours must be paid overtime. The Act makes it clear that regular working hours may not surpass 45 hours a week, and somewhat hours worked over that time must be remunerated as overtime.
4.1. TYPES OF OVERTIME
There are two different types of overtime:
(a) Normal overtime:
Any extra hours worked Monday to Saturday. These hours must be paid at 1.5 times the normal hourly pay. A domestic worker may not be made to work more than 45 hours in any week or work more than nine hours per day for a five-day work week, or more than eight hours a day for a six-day week.
(b) Double pay overtime:
Any extra hours that your domestic worker may work on Sundays and public holidays. It is important to note that you cannot force your domestic worker to work on Sundays and public holidays. Any time worked on Sundays or public holidays must be paid at double the normal hourly wage, except where the work is part of the worker’s ordinary hours of work.
4.2. RESTRICTIONS ON OVERTIME REQUIREMENTS:
- No more than three hours of overtime may be worked on a standard nine-hour work day.
- No more than 15 hours of overtime may be worked in a week.
- Standby is when the domestic worker is required to be at the workplace between 8 p.m. and 6 a.m. the next day, is allowed to sleep, but must be available to work if necessary. Typically, this happens when a worker is looking after small children. This may not be done more than five times per month, and it must be compensated by an allowance. If an employee is on standby after hours (available if needed but not actually on duty), they should be paid a standby payment
- A one-hour lunch break is compulsory after five hours of work, which is calculated as a working hour in the 45-hour work week.
- Employees may not work seven days uninterruptedly.
You’re not allowed to deduct any money from your domestic worker without her permission!
There are several things for which you can and can’t deduct money from a domestic worker’s wages.
5.1. PERMITTED BUT OPTIONAL DEDUCTIONS:
- Medical insurance, by mutual agreement.
- Savings, pension fund contributions or loans, by mutual agreement.
- Ordered account payment, if the employer has been ordered by the courts to deduct money from the employee to pay an outstanding account.
- Proportionate deductions can be made from the domestic worker’s pay if he or she has been absent from work, unless it was absence on paid leave of absence at the insistence of the employer.
- If accommodation is supplied to the worker, a deduction of not more than 10% of the total remuneration can be made. The accommodation must be in good condition with at least one window and a lockable door, and he or she must have access to a bathroom.
- With the consent of the worker, the employer can deduct certain amounts which the employer has undertaken to pay for the account of the domestic worker.
5.2. DEDUCTIONS NOT PERMITTED:
- Any amount greater than your employee’s earnings.
- Any amount to cover damage or breakages of household items including crockery, appliances or clothing.
- Meals provided during work times. You do not have to provide meals, but if you do, you cannot deduct for them.
- The cost of clothing used by your employee if they are required to wear a specific uniform.
- The supply of any work equipment, for instance brooms or lawnmowers.
- Employers can’t fine domestic workers or expect them to repay any overpayments previously made in error by the employer.
UNEMPLOYMENT INSURANCE FUND (“UIF”)
Any employee who works more than 27 hours per month must be registered for UIF.
As an employer, you must register yourself with the Department of Labour to receive a contributor number, which you then use to make payments. Your domestic worker is then registered as your employee, who will be a beneficiary under your contributor number.
A total of two percent of the employee’s salary must be paid to UIF each month. One percent has to be paid by the employer, and the other one percent may be deducted from the employee.
In order to get great results and energy from your workers, break phases are essential. It reboots your worker to perform the remainder of the day. “Eating at regular intervals in small amounts and not starving yourself is the key to maintaining …[ work results]” (quote by Krystle D’Souza).
An employer must allow a worker a regular rest period of 12 uninterrupted hours between conclusion of work and commencing work the following day. By agreement, this period can be condensed to 10 hours for a worker who resides at the workplace and whose meal break lasts for a minimum of three hours. A weekly rest period of 36 successive hours as well as Sundays must be agreed.
7.1. Meal intermissions
After five hours the domestic worker is permitted to a one-hour lunch break. During the break the worker may be mandated to complete duties that can’t be left unattended. A domestic worker must be paid for a meal intermission in which she is mandated to be accessible for work. For example, if the domestic worker must be on standby during her lunch break to care for children.
8.1. ANNUAL LEAVE
“A [leave] should be just long enough that your boss misses you, and not long enough for him to discover how well he can get along without you” (quote by author unknown).
Domestic workers are allowed to at least three weeks’ annual leave on full pay after they’ve completed 12 months of constant employment. The leave must be taken at times that are suitable to the employer, and the employer may necessitate the employee to take her leave at the same time that the employer is on leave. The leave pay must be paid prior to the commencement of the period of leave
8.2. SICK LEAVE
During a sick leave cycle of 36 months, the employee is permitted to a total of paid sick leave equivalent to the amount of days she would normally work throughout a period of six weeks. However, during the first six months of employment, a domestic worker is entitled to one day’s paid sick leave for every 26 days worked. The employee must let the employer know as early as possible that she is going to be absent from work. A medical certificate may be required if a worker has been absent from work for more than two consecutive days, or if the employee has been absent more than twice during an eight-week period.
8.3. MATERNITY LEAVE
“Maternity leave and parental leave is absolutely vital for strengthening families. It’s an issue for men and women” (quote by Quentin Bryce).
A domestic worker is permitted to at least four consecutive months’ maternity leave, starting at any time from four weeks before the anticipated date of birth, except otherwise agreed, or on a date from which a medical practitioner confirms that it’s required. The employer isn’t indebted to pay the worker for the period for which she is off work on maternity leave. The discharge of an employee on account of her pregnancy, intended pregnancy or any reason related to a pregnancy is inevitably unfair.
8.4. FAMILY RESPONSIBILITY LEAVE
A domestic worker who’s worked for an employer for extensive period of more than four months and who works at least four days a week is permitted to five days of family responsibility leave during each 12 months of employment. This leave can be taken when the domestic worker’s child is sick, or if a spouse, life partner, parent, grandparent, child, grandchild or sibling dies, or (in the case of men) when the worker’s child is born
9.1. PROBATION PERIOD
When you hire a new domestic worker, a probation period should be placed into the agreement. The probation period cannot be stretched more than three months, and throughout this time, any party can cancel the employment with direct effect, for any rational purpose.
After the probation period has derived to a conclusion, if you wish to cancel your worker’s occupation, you will initially have to provide three notices in writing (except when it’s given by an illiterate domestic worker), which the worker must sign, and then hold a disciplinary hearing.
9.2. THE PROCEDURE OF DISCIPLINARY HEARING
In the disciplinary hearing, there must be single impartial creature to hear both sides, and both parties are permitted to have someone represent them.
If the decision of the hearing is that discharge can take place, and the worker has stayed with you for six months or less, you may dismiss the service with one week’s notice. For slight period of over six months, you have a duty to deliver four weeks’ notice.
The service of a worker may not be ended except if there’s a lawful and reasonable reason, and unless fair procedure is followed. If a worker is discharged lacking a lawful reason or a fair procedure, the worker may approach the CCMA for assistance.
On finishing employment, the worker is permitted to a credential of service affirming her complete name, the name and address of the employer, the dates when service began and finished, the job report, and the charges of compensation.
9.3. NOTICE PERIOD
When it’s the employer who provides the termination on paper by notice, it is the duty of the employer to also be explain the termination verbally to the worker. The notice of termination must not be provided during any period of leave to which the worker is permitted. As an alternative of providing the worker notice, the employer can recompense the worker the complete wage she would have obtained if she’d operated for the complete notice period.
Though, you may discharge a worker out-and-out for gross transgression such as stealing or jeopardizing the life of your child. This is called immediate discharge, and not any notice period is mandatory.
9.4. TERMINATION DUE TO WORKER DISABILITY
If it’s not probable for the employer to adjust the worker’s responsibilities to suit the incapacity of the worker, the employer may dismiss her services.
9.5. REMUNERATION ON TERMINATION OF WORK
On expiry of employment an employer must pay a worker all the money due to her such as her wages, an allowance, salaried time-off not booked, and pro-rata leave.
9.6.LEAVE REIMBURSEMENT TO DOMESTIC WORKER
Leave owed to the worker is determined as one week’s salaries for each four-month’s operated or one day’s salaries for every 17 days worked.
9.7. RETRENCHMENT PAY
If you cut back a worker as a result to your variation in due your financial, technical, or organizational requirements (also called operational requirements), and you cannot find them another employ, you have to pay compensation pay. You will have to pay one week’s pay for every 12 months of constant service in totaling to the months’ notice. If the worker only operated part time, then you will have to pay for the amount of days operated in a week, for every 12 months of constant service.
9.8. NOTICE AND ACCOMMODATION
Live-in domestic workers may well also live on the properties for a month subsequently after expiry or dismissal of the employment, or the employer can recompense for their housing in another place.
WHAT MUST THE EMPLOYMENT AGREEMENT CONTAIN?
Having contracts in place is important as it deters bad behaviour and results. If it is not in writing, things could be misconstrued. “Truth is truth. Implications are subjective. People will hear your words and draw their own conclusion” (quote by Neal Shusterman)
Every domestic worker must have a signed employment agreement by law. The contract should be in writing as “A verbal contract isn’t worth the paper it’s written on” (quote by Samuel Goldwyn).
The agreement cannot supersede the Basic Conditions of Employment or the Domestic Workers Act but covers the particulars of your employment prearrangement. It is still beneficial to cover all the basic conditions previously stated here so that you and your worker can deliberate and comprehend them. You ought to review the agreement with your worker each year.
“A valid contract requires voluntary offer, acceptance, and consideration” (quote by Robert Higgs).
The agreement ought to comprise of the following:
- The full name and address of the employer
- The full name and occupation of the employee, and a brief description of the work that he or she will be doing
- The place of work
- The date of employment
- The domestic worker’s ordinary hours and days of work
- The domestic worker’s wage or rate and method and frequency of payment
- The amount of pay for overtime work
- Any other cash expenditures that the worker is permitted to
- Any deductions taken from salaries
- The leave she is allowed to
- The notice period vital to dismiss employment, or the date of expiry of employment if the employment is for a precise period only.
- Both the worker and the employer must date and sign the contract.
Domestic work is still a share of the major employment part for women who hold little or no proper schooling. Domestic workers have demonstrated to be the mainstay to the endurance of many families and they remain to make the lives of working parents more comfortable.
It is important to note that you ensure that you understand and ensure that you comply with the rights and regulations governing domestic workers. You do not want to end up at court or the CCMA for failing to abide by the regulations and procedures. To reduce the possible result of this, ensure that there is an employment contract in place highlighting the aspects of duties; leave and compensation. It is not sufficed to only ensure it is in writing, you need to ensure that your domestic worker understands the terms thereof to avoid a possible defence on their part that “they did not understand the contract”.
(NOTE: this article is for information purposes only. Each case depends on merits of matter and should be consulted with an attorney)