Domestic Worker issues: Department of Labour, union and civil society briefings

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Employment and Labour

23 August 2010
Chairperson: Ms L Yengeni (ANC)
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Meeting Summary

The Portfolio Committee noted at the outset that its Members, the Department of Labour (DoL), the South African Domestic Service and Allied Workers Union (SADSAWU), the Social Law Project (SLP) from the University of the Western Cape (UWC) and other civil society organisations had recently attended a conference of the International Labour Organisation(ILO), which sought the promotion of social justice and internationally recognised human and labour rights. The DoL not only led the South African government delegation, but was also spokesperson of the African group. The ILO meeting had specifically discussed the plight of domestic workers (DWs) worldwide and had agreed that in 2011 the various States would draft an agreement, either by way of Recommendations alone, or a Convention and Recommendations, covering issues of concern. The Black Sash had requested that the momentum and solidarity from the ILO meeting be used to start open dialogue, and the Portfolio Committee now provided a space for submissions.

The DoL reported that the first discussion at the ILO conference centred around the need to have DW accepted as decent work. Further work was still needed on undocumented migrant domestic workers, as also on whether domestic workers should be eligible for compensation under the Compensation for Occupational Injuries and Diseases Act (COIDA). There was an intention to establish a provident fund for domestic workers.

The Social Law Project, University of Western Cape, presented the results of research it had conducted in three major cities in South Africa. The findings in respect of minimum wage payments, awareness of rights, awareness of employer obligations, and the limitations on inspections in a private home in the current legislation, were highlighted. The Social Law Project presented numerous recommendations, including that inspectors be given the power to issue spot fines for contraventions, that UIF paid by an employer should be tax-deductible, and that legislation hindering implementation of rights had to be reviewed. A category of “chars” should be included in UIF, child minders and carers should be identified as skilled labourers, retirement funds should be established and that night work and standby allowances must be increased. It asked that the Department of Labour should conduct intensive information and focus groups and more funding should capacitate NGOs to further the cause of domestic workers. A paradigm shift in attitude would be necessary and the Project urged the unions to empower DWs. Discussions around the new minimum wage should not be reduced to haggling about numbers but could be broader, and set different levels of wages, both to incentivise domestic workers to upgrade themselves and to make employers aware of their skills.

The South African Domestic Services and Allied Workers Union (SADSAWU) emphasised in its presentation that DWs wanted to have their contribution to the economy recognised, and to be treated with dignity and respect. Many domestic workers were actually acting as carers or nurses, and were effectively subsidising both their own employers and government by providing unpaid services that were skilled in nature. SADSAWU wanted Government to look at social security, the current wage, access to housing, and COIDA, and to examine issues around labour brokers who were breaching the rules.

Ms Emmaleen Kriel, a private individual who had been both an employer of domestic workers in South Africa, and a domestic worker overseas, read an open letter of apology to all the DWs that she employed over the years. She, and other domestic workers, described their experiences, hardships, challenges and victories as DWs.

Labour Research Services noted the difficulties in accessing even basic statistics around UIF, and numbers of domestic workers, and enquired about the substantial drop in numbers of workers in this field. Social dialogue would be necessary, and employers’ organisations should also be included, whilst the discussions should also address health and safety issues.

The Department of Labour spoke to the UIF issues, and noted that there would be public hearings once the review period for the Sectoral Determination expired in November 2011. The position of undocumented migrant workers was explained. The Department conceded that there remained much to be done and was keen to work closely with civil society.

The Black Sash also suggested that further dialogue was needed on labour brokers, who should also be part of this process, to understand the issues concerning civil society and to discuss the ethics of their own practice.

Members asked about the UIF rules, and how part-time workers were treated. Members and presenters stressed that it was not so much the content of the legislation, but the implementation, that was lacking. The exploitation of migrant workers was examined, and this point had been initiated by the Department of Labour at the ILO. Members wondered if there was not a need to update the Labour Relations Act and Basic Conditions of Employment Act, as well as the SD7 laws, and asked if proposals had already been drawn to allow domestic workers to benefit from the security that applied to other workers. Members noted that NEDLAC processes would be followed, and suggested that a mechanism had to be found to enable unions to access subscriptions from a UIF process. They made the point that collective bargaining was difficult in this sector because workers were all employed in different places and under differing conditions. The point was also made that this research was limited, had not concentrated on rural areas, and that domestic workers had a variety of titles applied to them, which clouded the issues.

Meeting report

Domestic worker issues
Chairperson’s opening remarks
The Chairperson said this meeting was requested by Ms Phelisa Nkomo, Advocacy Manager at the Black Sash. The meeting hoped to strengthen the gains achieved from the International Labour Organisation (ILO) Conference on Decent Work for Domestic Workers, which had been attended by both the Portfolio Committee and the Department of Labour (DoL), and to move forward in addressing the issues of domestic workers (DWs). The Department would explain what it was currently doing and what was planned to improve working conditions for domestic workers.

Mr Virgil Seafield, Director, Department of Labour, said that the focus of the ILO discussions on Decent Work for Domestic Workers had centred on what instruments had to be developed in order to ensure progress towards this goal, for domestic work. The choice was between drafting both a Convention and Recommendation, or merely a Recommendation. Government and Labour input supported a Convention and Recommendation option, while Business was wary of the Convention option. The second debate then centred on the contents and provisions of the Convention and/or Recommendation. There would be further consideration and discussion around all the issues discussed during the first round, in later rounds, and after these had been thoroughly debated a final product, in whatever form, would be adopted.

Currently, there was a Convention plus Recommendation on the table. This could change again at the next round of discussions. A number of areas were discussed around the proposed Convention, including a debate on what constituted decent work for DWs. The DoL was comfortable with the proposed Convention, as it stood, and the South African government could adopt it as soon as it was finalised.

There were two areas that needed more work. One was how migrant DWs had to be accommodated, and to what extent should the law provide additional protection to that group. South Africa did not have answers to those questions as yet. The proposal in the draft Convention was to place the burden of repatriation of the worker on the employer. The second area of concern was social protection, and the proposal currently on the table required progressive protection for DWs. DWs were covered by the Unemployment Insurance Fund (UIF) in South Africa. There was still some debate on how they would be covered by Compensation for Occupational Injuries and Diseases Act (COIDA). There was an intention to establish a Provident Fund for domestic workers. DoL noted that these two areas needed more work, but believed that nonetheless the Convention should be adopted.

Ms A Rantsolase (ANC) asked what the expectations of the process were. This tool had not been completed or adopted by ILO, nor signed by the South African government. It was still very much in development, and was still a discussion paper. She asked if the DoL was planning to influence the document during the second round of discussions.
The Chairperson said that this question would be answered later. She thought it positive that the DoL was reporting back on the developments of the conference.

Ms Phelisa Nkomo, National Advocacy Programme Manager, Black Sash, confirmed that some of Ms Rantsolase’s concerns would be answered by the later presentations. The idea was to initiate a dialogue on the issues. This meeting would strengthen the gains that were made and tighten up the loopholes.

Social Law Project, University of Western Cape (UWC): briefing
Ms Andiswa Makasi, Researcher, Social Law Project, University of the Western Cape, explained that the Social Law Project (SLP) was attached to the Law Faculty at UWC. It was a small unit involved in training and research in labour law, as well as social security law. SLP was pleased to report to the Committee on its research, and to share research findings from the Domestic Workers Research Project (DWRP) that had been undertaken by SLP.

The aim of the DWRP was to determine the efficacy of Sectoral Determination 7 (SD7), which regulated the domestic work sector. This was promulgated in 2002, and the research looked at whether it had, up to 2010, achieved what it set out to do, which was to set basic conditions of employment and minimum wages for the domestic work industry. The SLP had investigated the topics of human rights, compliance and enforcement, migrant DWs, and empowerment and organising of DWs.

The DWRP extracted its findings from published books, containing mainly SD7 and articles, had done a survey, and focus group workshops. She referred Members to the The survey was conducted in Cape Town, Johannesburg, and Durban. SLP spoke to employers, domestic workers, DoL and trade union officials. The focus group workshop were small intimate gatherings with DWs, and recently also with DoL inspectors, where SPL was able to share its concerns and, in collaboration with the inspectors, could suggest possible solutions, which both parties would like the Committee to take forward in pursing rights for DWs. More information was available on the website.

Her presentation highlighted the issue of the minimum wage. In 2009, an average of 138 out of the sample of 600 DWs, or 23%, received more than the minimum wage. 11% were getting the minimum wage. 65.3% of unionised workers were aware of the fact that there were laws that applied specifically to DWs. However, only 19% of non-unionised workers were aware of such laws. She asked the DoL why this was the case, despite the Department’s awareness campaigns. This illustrated the role that unions played in empowering and educating DWs.

Out of 200 employers from Cape Town, Durban and Johannesburg, less than half of respondents had their domestic workers registered for UIF, while 56.2% were aware that they had to.

Since the promulgation of SD7, DWs now had rights and benefits, including UIF, prescribed minimum wage and working hours, leave days and termination rules. There had been a change in attitude of some employers and they were legally protected. Constraints that hindered the realisation of full rights for DWs included a lack of knowledge and awareness of SD7, the restricted powers of inspectors, exclusion from COIDA, the lack of a forum/bargaining council for the DW sector, and Section 65(2) of the Basic Conditions of Employment Act (BCEA). This law did not permit inspectors for the DoL to enter private homes.

The SLP suggested that DoL should be conducting awareness campaigns targeting employers to make them aware of SD7 and their duties in terms of the Act. Employers also had to be made aware of the Labour Relations Act (LRA) and the BCEA, and what they must do to comply with this legislation. DoL should be including the community press in its campaigns and information must be published in all languages, not just English, Afrikaans and Xhosa. Campaigns by the DoL also had to involve social structures.

The SPL suggested measures to reward complying employers. These could include a good employer database, tax relief, car stickers publicising that employers treated their domestic worker with respect, and certificates of good standing. The SLP also suggested measures to punish non-complying employers, which might include a name and shame database, penalties for UIF transgressors and spot fines issued by inspectors. The SLP further suggested that Section 17 of the LRA should be reviewed or deleted, and that Section 65 of the BCEA be reviewed.

The SLP suggested that the legislation that excluded DWs from social security had to be changed or reviewed. It suggested that a category for “chars” had to be included in UIF, that DWs had to be included into COIDA, and that child minders and care givers had to be identified as skilled labourers. SPL suggested that there had to be a retirement fund for long term employees. It also proposed the inclusion of provision for a 13th cheque in SD7, said that a figure had to be established for the night work allowance, that there should be an increase of the R20 standby allowance, and that more powers must be granted to inspectors, such as issuing spot fines and serving subpoenas by pinning them to the front door of the property.

SLP also suggested that the DoL should conduct focus groups for DWs, that the DoL should conduct focus group workshops for the inspectors, and workshops for employers, which would include how to prevent xenophobia in the country. DoL should attend to more vigorous law enforcement and inspectors should be specialised. DoL inspectors should also target the township areas and poor rural areas. DoL campaigns should also involve other stakeholders like the Commission for Conciliation, Mediation and Arbitration (CCMA), non-government organisations (NGOs), and the social service and justice sector. Civil society funding should be targeted to capacitate NGOs to further the cause of domestic workers. It also suggested the formation of an employers’ organisation.

The Chairperson said that the DoL had to organise workshops, countrywide, to do the education campaigns suggested by the SLP. She commended the approach of the SLP, which included concrete suggestions as to how difficulties could be overcome. She advised the DoL to reach out to DWs with the help of the Black Sash, SLP and other organisations, to educate and inform DWs and bring them on board when searching for solutions.

South African Domestic Services and Allied Workers Union (SADSAWU) briefing
Ms Myrtle Witbooi, representative for South African Domestic Services and Allied Workers Union, thanked Members for the opportunity to appear before Parliament. Even before the formation of the Congress of South African Trade Unions (COSATU), the South African Domestic Workers Union (SADSAWU) was campaigning for the rights of DWs. Many Members of Parliament were employers of DWs themselves. She had formerly worked as a DW and had been involved in this   and it was a pity that they did not bring them along to Parliament for this occasion. She, a former DW herself, had been the Chairperson of the worldwide Domestic Workers Network that took the campaign to the ILO.

She agreed with Ms Makasi that there were many challenges, but there were also a lot of positive aspects in the DW sector in South Africa. Since 1994, many labour laws were extended to DWs, who were grateful for them, but implementation needed to be worked on. SADSAWU acknowledged the work of The Department of Labour in taking such a strong lead at the ILO. Many of the aspects being campaigned for in other countries were already legislated for in South Africa. She reiterated that South Africa just had to work on the practical implementation of these laws.

South Africa had similar challenges to other countries, as discussed at the ILO. Often, DWs were not recognised as needing decent work, wanted recognition as workers who contributed to the economy by freeing up the house owner to work in the mainstream economy, and demanded a living wage. The minimum wage in South Africa for DWs was not yet a living wage. DWs also wanted their human rights protected, and to be treated properly. SADSAWU wanted to embrace migrant workers in the RSA, who were suffering, similar to other DWs. Employers, during the ILO discussions, had disagreed with having a Convention with strong recommendations.

She outlined that DWs worked for people from all political parties, and SADSAWU needed support from all parties, continuous awareness-raising of issues in Parliament. DWs had no social protection benefits and were excluded from COIDA, but this process could be a turning point. Although DWs were represented at the ILO, many had never had the chance to speak to their own Parliaments.

Ms Witbooi also commended Mr Seafield on the way he had led the African delegation at the ILO. However, she cautioned that the Convention may still be watered down, which was why DWs needed the widest possible support network, including support from Government to defend and strengthen the gains thus far. DWs must be educated on their rights, have social human rights, and be recognised for their support to the economy and society. Support from government would be needed, and she called upon Parliamentarians to sign petitions and give public support to SADSAWU. The Namibian Parliament was already dealing with the issues and SADSAWU called upon Government to study the Resolution of the ILO, give full commitment and support, and be prepared to take the lead at the ILO in the following year.

She said that SADSAWU wanted Government to look at social security, the current wage, access to housing, and COIDA. There was also a need to look at agencies and labour brokers, those who stuck to the rules and those who did not. DW should be improved so that it could be declared decent work, and DWs should be able to celebrate their dignity as domestic workers and women.

Ms Emmaleen Kriel submission
Ms Emmaleen Kriel, author of a book called “Close the door softly behind you” said that she wished to recount her personal experiences to the meeting. She lived in Constantia, where she raised her seven children, with the assistance of several DWs over this period. Her children left home, one by one, and after her husband died she had fallen on hard times.

Her friends suggested that she should try to find work overseas as a domestic worker, where she could earn well, whereas in South Africa the market would be reluctant to employ a white woman as a DW. She had spent 12 years overseas, working as a cook, cleaner and carer. Her friends had assured her that as long as she was being paid, domestic work was no different from any other type of work. However, after being a DW for one year, she had realised that there were substantial differences. She had now written, and read out, an open letter of apology to all the maids she had ever employed, in gratitude for their loyal service (see attached document for detail). She noted that now that she had been a “maid” herself, she thought of those whom she had employed daily, and had become acutely aware of what it must have been like to work for ‘madams'. She apologised both for herself, and, if she could, for all other “madams” who exploited the desperate plight of their DWs and shielded behind the cold, insensitive cloak of apartheid.

The Chairperson thanked Ms Kriel for a touching letter. It had not been necessary for her to write it, but she had reflected on her life, after working as a DW herself, and had extended a hand of reconciliation. She said that very little had changed in South Africa in the way that DWs were treated, only now there were stories of abuse being inflicted not only by white people, but by all. This spirit of reconciliation would assist people to go forward.

Mr I Ollis (DA) said that it had been pointed out that unless a DW worked for more than 24 hours per month, for the same employer, that employer could not register the DW for UIF. He pointed out that a person working once a week for eight hours should be working 32 hours a month.

Ms Makasi said that the 24 hour rule was valid for one employer. If the person worked full-day, UIF would apply, but where a person only worked half-days, as was often the case, the 16 hours  work per month would not qualify the DW for UIF. Chars often worked for different employers, clocking up several hours in every month, but not enough for one employer.

Mr W Madisha (COPE) said that there was clear agreement that there was a need to move forward. All workers under the democratic government must be protected, and this applied to most sectors, yet the DW sector had suffered from lack of implementation of worker rights. That should be the focus of the discussion here.

Mr Madisha noted that the exploitation of migrant workers was another important issue. 1,2 million local people were unemployed, because employers preferred to employ migrant workers, who were prepared to work in exchange for accommodation, did not claim their minimum wage and were prepared to work for more than the legal number of hours. All forms of exploitation had to be addressed. There was lack of recognition of issues by trade unions. He stressed again that proper implementation was the key issue.

Mr E Nyekembe (ANC) said that most of the issues raised in the presentations had been raised by the South African delegation to the ILO. Even the debate on migrant DW work was initiated by South Africa, citing the Sectoral Determination 7 law in South Africa as an example. He quoted the ANC slogan:”Working together, we can do more”. Anybody who had constructive contributions to make to the debate must contribute their ideas and information and engage in dialogue. He reminded Members that in Johannesburg, a few years previously, COSATU and DoL had a joint campaign to expose workplaces not complying with labour legislation. The SLP could initiate something similar with the DoL. He indicated that perhaps the LRA and BCEA needed to be updated.

Mr Nyekembe commended the sector’s trade union, who had used the medium of radio to inform, educate and conscientise the public about the rights of DWs. He also said that he liked the suggestion by the SLP on spot fines, but that Parliament had suggested to the DoL, when it had proposed spot fines, that this issue needed to be thought through, as the current law required notification to an employer who was breaching a labour law, and the opportunity to rectify it.

Mr Ollis asked the DoL whether it should not proposing amendments to the way in which membership of compensation funds was defined, as well as the way in which COIDA was applied. DWs, who already had little job security, should be included. He asked whether there draft proposals had already been drawn to allow DWs to benefit from the security net that applied to other workers.

Ms Rantsolase said that South Africa should be able to influence and subscribe to the Convention. However, she cautioned again that the final product might differ substantially to what was now envisaged, and its preamble would stipulate what the signatory countries would have to do, which meant that at that stage the countries would then have to formulate their policies.

She also noted that there were other processes. Unions were represented in the Labour Market Chamber of the National Economic Development and Labour Council (NEDLAC). In NEDLAC, there was already a process underway to ensure that DW was decent work. All the labour market policies would be amended. This process would be more effective if the community could also exercise influence. This route would ensure that the relevant legislative amendments were made.

Ms Rantsolase also pointed out that the DW unions had historically had a problem in collecting subscription fees. Some mechanism had to be created so that the unions could access subscription fees through a UIF or other administrative process.

Ms Rantsolase felt that the relevant presentations should also be made to enable amendments to the SD7 laws, and that the Labour Market Chamber of NEDLAC should be asked to ensure that this was done. She suggested that perhaps the SLP was best placed to give advice on the legislative amendments that were needed.

Mr Nyekembe felt that it was important to indicate the process of legislative amendments, and said that normally Parliament would identify any areas that needed amendment, and would instruct the DoL to prepare them for tabling to Parliament.  

Mr Nyekembe said that the SLP had said that the treatment of and working conditions of DWs differed, according to whether they were local or migrant workers. LRA did not force collective bargaining, but said that trade unions and employers could come together and form a bargaining council. Collective bargaining would be effective if there was a strong body of unionised workers, and it was difficult to establish a bargaining council in the DW industry, where each DW worked in a different place and under different conditions.

A person present at the meeting commented that he did not think the present discussions were doing justice to the subject, and thought that the information and the research were inadequate. Domestic work was a complex issue, because DWs did not work under one roof. The research presented only concentrated on major urban centres in the country. Farming communities were not researched. In some areas DWs were called “helpers”, or some other title, which clouded the issues. He was not convinced that the full story was being presented.  

Ms Makasi replied that one had  to remember the context, and pointed out that many DWs entered their profession not by choice, but by circumstances. Many were illiterate. Most of them were the breadwinners for not only their own children, but often also an extended family. They also often moved to the urban areas to find work, rather than through real choice. She acknowledged that the research sample was not fully representative. With more resources, that research sample could be extended to the greater South Africa and could target poor rural communities as well as townships.

She added that the SLP was not the first or only body to do research in this area. The SLP research was more current, dating from 2009, but SLP was also working with the DoL, the Labour Research Service and the Black Sash, all of whom had conducted research into this area before. These agencies were present. SLP was also able to work with SADSAWU. She said that the context and circumstances of the research should be understood. She commented that the quoting of “Working together, we can do more” was appropriate. This was certainly not the end of the matter, but SLP had been happy to share information with other stakeholders. It was important that forums such as this be held, to keep up the pressure and maintain urgency. These dialogues were only the means to an end. SLP had also attended the ILO meeting, and had made a presentation on what needed to be done by States to establish a Convention. The agreement, whatever form it might take, was to be formalised in June 2011. However, South African stakeholders should be running a parallel process locally to ensure that by the time that binding agreements were reached, all legislation in South Africa was in line with what it hoped to achieve, and any conflicting legislation had been removed.

Labour Research Services comments and questions
Mr Saliem Patel, Director, Labour Research Services, noted that his organisation specialised in research and education. He noted that when it had conducted research in order to assist the Trade Union, it had not been easy to access basic information, such as the number of DWs in Cape Town. If DWs were paying UIF, then it should be easy to extract the numbers, and find out how many DWs there were in, for example, Cape Town, which should then be able to be broken down in smaller areas. He wondered if DoL collated that information, whether it needed assistance in doing so, and whether it was possible to get the figures, and also whether someone could access UIF records in order to do this kind of work. This data would certainly assist in undertaking surveys and assessing what might be the most representative samples.

Mr Patel pointed out that the Labour Force Survey had said that there were 888 000 DWs nationwide, which had dropped from a figure of 1.2 million quoted a year ago. This indicated that more than 300 000 DW jobs were lost, and he wished to enquire where this had happened, as it was necessary for Parliamentarians also to know this in order to drive processes.

Mr Patel also said it was necessary to ensure that social dialogue happened. Although NEDLAC was useful, but the DW sector was not organised and was not quite part of the mainstream, so extra social dialogue processes were needed. For example, the public hearings on Sectoral Determination should happen in areas where there were many DWs, so that they could take part in the process. These areas needed further constructive thinking. Employers’ organisations had to be included in the discussions. Nothing was said about standards, but these would relate to health, safety and numerous other issues. At some point these difficult questions had to be tackled, rather than always being deferred. Because there was nothing yet in existence, the collective had a blank page from which to start, and must begin to determine the standards.

Professor du Toit, Social Law Project: comment
Prof Darcy Du Toit, Social Law Project, UWC, said that a common thread was emerging from all that had been said. Nobody was speaking about making minor adjustments to existing laws that were working well. This meeting was talking about the need for a paradigm shift and what must be done to make this happen. Even putting in 20 more inspectors would not make a significant difference to the matter, as the problem lay not with inspections, but rather with continuing attitudes and mindset of employers. He referred to Ms Kriel’s letter of apology as a former employer, and said that if a critical mass of employers could view their own situations in this way, it would make a huge difference. DW empowerment stemmed largely from changes in mindset. When DWs could meet their employers on an equal footing, and were recognised as human beings who deserved to be taken seriously and treated with dignity and respect, the paradigm shift would happen. The unions were instrumental in empowering DWs and raising awareness about their rights.

Prof du Toit said that the new minimum wage was about to be discussed. If the discussion was limited to haggling about the numbers, this would do nothing to raise any consciousness. It was possible to take a different approach and feed into what South Africa would be recommending to the ILO. He asked why it should be necessary to confine the discussions to only one minimum wage. It could surely be stratified, to cater for DWs with different skill levels. There could be an entry level minimum wage, and then other levels of minimum wage depending on whether the DW was a carer, or had to operate machines or appliances in the household. This would also make employers more aware that their DWs possessed some skills, and would incentivise DWs to up-skill and develop themselves. The Sector Education and Training Authorities (SETAs) could be brought into the picture. If a high demand could be generated from domestic workers for training in different areas, it could put some pressure on the SETAS.

He added that the South African government had Constitutional duties to implement the right to Social Security, amongst other basic rights. DWs also provided a much needed service in the form of care for the aged, and for children. Government did not have the resources to fulfil this need through the Department of Social Development. There were almost one million DWs who were able to provide important functions in caring. He wondered if the State could not provide the skills training and the financial backing to employ presently-unemployed DWs to fill the most-needed vacancies.

Prof du Toit said he had noticed some reactions from those present when the SLP had suggested that paying a DW should be tax deductible. However, it was surely incongruous that a person could spend R2 000 in taking a business associate to a dinner, and claim a tax deduction for a business expense, yet not be able to claim a deduction when paying UIF for his DW. There was a need to think creatively to move matters in the right direction.

Ms Christine Anthony submission
Ms Christine Anthony, a housekeeper, asked that she could give some insight to the Committee on the life of a domestic worker. She indicated that she had been working as a housekeeper for the same family for 20 years. When she started with them, she had a three-month old son, who was discovered to be disabled. She had asked her employer for permission to have her son stay with her, so that he was close to the city hospitals where his condition could be treated. Her son was now 20 years old, and was doing matric at Vista Nova High School. She had much sympathy with domestic workers who might also have disabled children, yet were not allowed to keep their children with them, and never were able to discuss their children’s’ condition directly with the doctors, but were reliant on having the information conveyed second-hand.

Ms Anthony noted that when she had started working for her family, one of the children of the family was two and a half, and the other was six. She was essentially a cleaner, did the ironing, cooked, but was also helping the children with their homework after school, nursed them when they were sick or hurt, and generally advised and taught them. In most cases, the numerous functions that a DW performed were not recognised. Many DWs were badly treated. They feared what their employer’s reaction would be if they joined a union, and unionised DWs asked that their membership not be divulged. In her case, she had wanted her employer to know that she was a union member.

In the area where Ms Anthony worked, many other employers  forbade their DWs from having contact with her, claiming that she was “too clever”. Many DWs really needed the support of the Portfolio Committee. She noted that DWs were suffering a lot. She gave accounts of DW who were, for example, expected to clean an entire double storey house in one afternoon. Although she conceded that there were some good employers, some who were aware of the laws still refused to comply or to ease the lives of their DWs.

During a SADSAWU workshop, it had been noted that some DWs wanted to take on the migrant workers, but other union members had advised that this should be avoided. All DWs were needed to build the union, including migrant DWs, and it was rather the employers who were contravening the law who should be brought to book.

Jonathan Grossman submission
Mr Jonathan Grossman noted that he had worked for the former unions and was currently a representative of SADSAWU, as it was now called, and fully supported the public sector workers who were currently on strike. He urged that the process in South Africa should not be delayed by waiting for developments at the ILO. In 1997, these very same issues had been discussed when the BCEA was being drafted. It was said then that there could well be non-compliance, a lack of information and active misinformation, and inadequacy in enforcement mechanisms. He asked how much pain and suffering had been experienced by DWs in the intervening thirteen years.

Mr Grossman was grateful for the contributions made so far. There had been a tendency to criticise the DoL. To some extent, this was legitimate, but it must be remembered that the DoL had to enforce laws that Parliament, and not the DoL had made. SADSAWU had repeatedly identified obstacles in the laws that were supposed to protect DWs, but discussions always ended with the exclusions and exemptions that were still in place today, which meant that the most vulnerable of workers were not protected. Inspectors were unable to enter private homes, and the Constitution protected the right to privacy at the property over and above the welfare of a DW. Both the content of, and enforcement of the legislation was problematic.

Mr Grossman said that paying a minimum wage to a DW did not solve any problems. The restrictions and exclusions in the legislation created a cycle of vulnerability and poverty for DWs.
This had to be broken.

He indicated that Ms Anthony, his mentor, had touched on a point earlier about DWs essentially acting as teachers to children, although their most important role was often not recognised, and they were regarded as “just DWs”, doing women’s work and not contributing to building the economy. DWs were essentially often subsidised their own employers, by taking on nursing or carer responsibilities in respect of children, the sick or the elderly, whilst being paid a considerably lower wage. Thousands of black women were doing unpaid DW. They were essentially subsidising government in providing social services either free of charge, or at a very low wage, and being unrecognised for this contribution.

DW was an essential public service. No country could run without their assistance in their work arena. A mind shift was needed, to give full recognition to the essential services they performed daily, and until this happened, South Africa would merely be repeating the cycle of indicating problems but doing nothing about them.

Elizabeth Ely submission
Ms Elizabeth Ely described herself as a former DW who was a SADSAWU member. It was not her choice to enter the DW market, but she was forced into it, similar to generations before her, as there was no high school where she lived, and her parents were unable to afford to send her to another. She had many bad experiences when working as a DW, which made her determined that her children and grandchildren would get an education and not be forced into this field too.  Life was hard for DWs, who wanted recognition as human beings. They were severely underpaid, most often could not access bank loans to buy houses, and if, like her, they had been able to do so, it was a constant struggle. Many DWs were not able to return to their own homes after work, but lived on the property of their employers, and would still tend to be asked by the children to do things, even when off duty.  

Ms Ely said that today she had managed to educate all her children and she had a registered cleaning service business. She felt that DWs should not be taught skills in order to stay DWs, but to progress onwards. Presently, they battled to get skills training. SADSAWU had taught her many useful skills, including how best to communicate with her employers, who were now supporting her union membership.

Department of Labour submission
Mr Les Kettledas, Deputy Director General, Department of Labour, said he would respond to two issues. It had been significant that South Africa was chosen as the spokesperson for the African group at the ILO. It also placed an obligation on South Africa to have sanctioned the African common position by 2011, when the conference took place again. The DoL would engage with the Southern African Development Community (SADC), the employment and labour sector, as well as with the Labour and Social Affairs Commission in the African Union before the conference in 2011, so as to strengthen its own participation and the common African position. This discussion had been very useful, with food for thought being given around policy formulation and enforcement.

Department of Labour wanted to share some information on UIF registration. He pointed out that  in July 2010, 643 346 DWs were registered for UIF, and they were working for 595 942 employers. In the month of July alone there were 1 325 new employer registrations. The SLP presentation had indicated that a portion of the employer sample were unaware of the laws that they must comply with, when employing DWs. That would certainly be an area that DoL must target, to ensure that they registered their DWs for UIF. If the Labour Force Survey was correct, in saying that there were 888 000 DWs yet the DoL had registered 643 346, then DoL was getting close to full registration for DWs. However, it must find out where the unregistered DWs were, to target those areas for compliance.

Mr Kettledas noted, in answer to a question raised by Ms Rantsolase, that the Review Period for the Sectoral Determination was due to expire in November 2011. From April 2011 there would be a process of public consultation, in the form of public hearings. Working together with SADSAWU and other relevant bodies, the DoL planned to maximise participation by DWs and employers, with a careful targeting of venues.

He noted that undocumented migrant workers were dealt with by the immigration legislation enforced by the Department of Home Affairs (DHA). When DoL inspectors found undocumented workers, they would liaise with DHA. An employer who had employed an undocumented labourer would have to carry the repatriation cost. South African conditions of employment legislation did not distinguish between a local and a foreign DW.

The DoL was aware about the issues around DW compensation, and said that this was being investigated by the Compensation Fund, and he would follow up on their progress.

Mr Kettledas conceded that although progress had been made, there was still much to be done. He appreciated this debate, which had helped the DoL to identify the most acute areas requiring  interventions. There would be engagement and collaboration with SADSAWU, SLP and other related organisations in order to make headway in implementing human and worker rights for DWs.

Ms Nkomo, Black Sash, also expressed her appreciation for the opportunity granted by the Portfolio Committee to engage with all the parties present today, and to go some way to achieving her goal of social dialogue on the rights and implementation of rights of DWs. Policy makers were able to hear first-hand accounts of the needs. It was important for the Black Sash to build on the political solidarity that emerged at the ILO Convention between Government and civil society. This must be used to tighten up the loopholes in the regulations. It was also necessary to collectively reflect that, while South Africa had noble laws in place, there were weaknesses around enforcement. Civil society organisations appreciated the progress made so far and would take up the offer of DoL to engage continuously.

Ms Nkomo said that she would have appreciated comments on labour brokers, some of whom were present at the meeting. Labour broking was a sore point, as they were accused of exploitation of local and foreign workers. Labour brokers should be part of the process, both to gain exposure to the aims and goals of civil society, and to interrogate the ethics of their practices. She said that civil society would like the legislation around labour brokers to be fast-tracked.  She felt that there was not enough attention being given to this area. She proposed a national open dialogue between civil society organisations, labour brokers and employers, to expose and explain the issues and present formal proposals.

Ms Nkomo said that the call to recognise DWs as public servants and subsidisers in the economy had to be captured in a more solid and comprehensive legal framework.

Ms Nkomo commented on the call for a paradigm shift in mindsets of employers, agreeing that there was a need to start appreciating the value that DWs brought to their workplaces, and to link this to women’s emancipation, since most DWs were women. When DWs were abused and undermined, society was regressing. She hoped this dialogue would continue in other forums, such as NEDLAC, and looked forward to receiving solid responses from the Portfolio Committee.

The meeting was adjourned


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