Nineteen years into democracy and South Africa still feels the effects of the apartheid era. One of the areas where these effects are most evident is the domestic sector, where 90% of the workers are black women. Furthermore, there are ongoing issues regarding the treatment of domestic workers. Although the domestic sector has contributed towards alleviating the unemployment problem in South Africa,⁽²⁾ there are still persistent challenges within the sector itself.

This CAI paper discusses the Sectoral Determination 7 of Domestic Workers,⁽³⁾ which seeks to regulate the domestic service sector. Although it is difficult to establish whether or not employers adhere to this law (due to the nature of domestic work taking place in private spaces), this paper discusses the labour relations between employers and employees in theory, according to the Sectoral Determination 7 of Domestic Workers. It also touches on the various criticisms of this Act by various commentators.

Background: South African domestic workers

Before one can discuss the Sectoral Determination 7, it is important to understand the environment and context that necessitated the enactment of this law: in order to maintain the apartheid system of white supremacy, black people had limited access to education, skills acquisition, and job opportunities.⁽⁴⁾ They were also deliberately excluded from certain occupations (e.g. clerical work). One of the few sectors that employed black, female, unskilled workers was the domestic service sector.⁽⁵⁾ This sector not only provided black women with employment, but also with an opportunity to obtain a permit ⁽⁶⁾ to reside in urban areas which were far more developed than the former Bantustans.⁽⁷⁾

A study by the International Labour Organisation reveals that 90% of domestic workers around the world are not covered by the same laws as workers in other sectors.⁽⁸⁾ The South Africa of the apartheid era was no different. Due to socially constructed ideas of what constitutes ‘real work’, domestic labour is often considered to be inferior to traditional employment, and is therefore left unregulated. The reasons for this are varied, and trace back to the complex nature of the domestic service sector. For one thing, domestic workers perform their labour in their employers’ private residences. Moreover, the services that the worker provides on behalf of the employers’ home and children is something that domestic workers perform in their own homes free of charge. This creates a peculiar environment where lines are blurred between work and home.⁽⁹⁾ According to Du Preez’s study on domestic workspaces in South Africa, employers often shift between perceiving their domestic workers as employees or members of the family, depending on what suits them at the time.⁽¹⁰⁾ This inconsistency increases the vulnerability of domestic workers to demeaning treatment and exploitation.⁽¹¹⁾ During the apartheid era in particular, domestic workers were also at high risk of job insecurity, as they mostly worked as part-time ⁽¹²⁾ and temporary workers,⁽¹³⁾ a situation compounded by the institutionalised system of inequality between blacks and whites.⁽¹⁴⁾ This arrangement was convenient for white South Africans because black women could take care of white women’s reproductive roles at low wages, while those white mothers invested their time in the formal labour market.

Domestic work exposes socially constructed hierarchies that still exist within South African society. Just as men often perceive domestic work—such as cleaning and childcare—as inappropriate for males (due to patriarchal traditions that categorises reproductive work as feminine), unskilled work is likewise often considered inappropriate for white people. As a result of these dual stereotypes, black women have been left to populate this occupation. In today’s South Africa, more than a million black women (20% of employed black women) are employed in the domestic sector, which means it remains a key source of employment for black South Africans.⁽¹⁵⁾ Domestic employers, on the other hand, are mostly white, although with the rise of the black middle-class in post-apartheid South Africa, there is a corresponding rise in black families employing domestic workers.⁽¹⁶⁾

Sectoral Determination 7: Domestic workers

According to the Sectoral Determination 7, a domestic worker is defined as “any worker or independent contractor who performs domestic work in a private household and who receives, or is entitled to receive pay.”⁽¹⁷⁾ This definition includes gardeners, cleaners, drivers, and caretakers of children or the elderly.⁽¹⁸⁾

The first law to protect the rights of domestic workers was the 1993 Amendment of Basic Conditions of Employment Act.⁽¹⁹⁾ This Act set down basic requirements for working conditions, working hours, matters relating to leave, and dismissals of workers. The amendment was, however, criticised for excluding part-time workers. In addition, it neglected to establish a minimum wage for domestic workers.

Since the Amendment of the Basic Conditions of Employment Act,⁽²⁰⁾ there have been various attempts to protect the rights of domestic workers. The 2000 Sectoral Determination 7 of Domestic Workers has ⁽²¹⁾ been a key catalyst for change in the domestic worker sector.⁽²²⁾ It is the only Act that is solely dedicated to domestic workers ⁽²³⁾ and which offers explicit protections to domestic workers concerning the right to join a union, a set minimum wage, and regulated working hours.⁽²⁴⁾ The Sectoral Determination 7 was created to improve the legal status of domestic workers, which would in turn protect them in the workplace.⁽²⁵⁾

This Act sets out various requirements, criteria, and standards by which employers must abide. To begin with, there is a minimum wage to which domestic workers are entitled. The minimum wage is based on two determinants: first, the area in which the domestic worker is employed (metropolitan or rural), and secondly, the number of hours he/she works in each week. Those that work for more than 27 hours per week in metropolitan areas must earn no less than ZAR 1,746 (US$ 171) per month. Those that work for the same number of hours, but in rural areas, must earn no less than ZAR 1,492 (US$ 146) per month. Those that work for less than 27 hours per week in metropolitan areas must earn no less than ZAR 1,238 (US$ 122) per month, and those that work the same amount of hours in rural areas must earn no less than ZAR 1,056 (US$ 104) per month.⁽²⁶⁾

Moreover, according to the Act, domestic workers are limited to working 45 ordinary hours each week and nine hours each day (for those working five days a week). If they work for more than five days each week, then they may only work a maximum of eight hours in each day. Domestic workers that work for extra hours are entitled to overtime payment.⁽²⁷⁾

If employees live at their workplace, employers may only deduct up to 10% of the domestic worker’s salary or monthly wage for accommodation charges. Furthermore, that accommodation must meet certain standards. For instance, domestic workers’ rooms have to be weatherproof and be equipped with at least one window, a door that can be locked, a bath/shower, and a toilet. Employers are also required to register their domestic workers (only those that work more than 24 hours a month) for the Unemployment Insurance Fund. They are expected to pay 1% of the domestic worker’s salary towards this fund each month.⁽²⁸⁾

Employers that do not comply with the requirements of the Sectoral Determination 7 can be taken to the Commission for Conciliation, Mediation and Arbitration (CCMA) by their domestic workers to seek recourse.⁽²⁹⁾ It is important to note that the CCMA seeks to protect the rights of both employers and employees. However, only a small number of domestic workers are aware of their rights.⁽³⁰⁾ This could be because information on various statutes protecting domestic workers is mostly found on the Internet, in government departments, or through unions or conferences. Domestic workers that spend long hours working, often without access to computers and the Internet, are likely to have difficulty accessing information about their rights as domestic workers.

Sectoral Determination criticism

One academic, Sibaya Thandiwe, criticises the Sectoral Determination 7 for being a corrective measure, rather than a preventative one.⁽³¹⁾ She argues that the Act is not implemented in the daily lives of domestic workers, but rather, only comes into play after a dispute between an employer and employee. She maintains that the government needs to monitor the domestic sector to ensure the correct implementation of labour laws in the workplace, regardless that that workspace is also a private space in the case of domestic workers.

Economists have also expressed concerns about the Sectoral Determination 7, with some claiming that minimum wage requirements may hamper the creation of jobs. Although this cannot be solely attributed to the setting of a minimum wage,⁽³²⁾ this statement could be supported by the fact that in the year 2000, there were approximately 1,025 million employees working in the domestic sector, which dropped to 977,000 in 2003 after the passing of minimum wage legislation in 2002.⁽³³⁾ This figure continued to drop and, by 2013, there was a 5% decrease in the number of domestic workers in South Africa. This is despite the fact that South Africa’s middle-class grew and the average household income increased during the same period.⁽³⁴⁾

Du Preez, et al. criticise the government’s attempt to balance asymmetrical power relations between domestic workers and their employers by simply enacting the Sectoral Determination 7.⁽³⁵⁾ They argue that the government’s understanding of power relations between domestic employer and employee as a byproduct of the apartheid era is myopic. They also maintain that a more comprehensive understanding of the issue is needed if the issue is to be dealt with adequately.⁽³⁶⁾ In other words, the issue of racism is not the only determining factor when it comes to the relationship between domestic workers and their employers. Their position is further emphasised by Dr Jennifer Fish,⁽³⁷⁾ who observes that imbalanced power relations between employers and employees (in the favour of employers) are a general phenomenon globally and not just a South African challenge.⁽³⁸⁾ However, one cannot help but acknowledge the influence of apartheid on today’s labour relations between domestic employers and employees in South Africa.

Concluding remarks

There is rampant unemployment in South Africa, so the reality that more than a million black women are employed in the domestic sector demonstrates the large contribution that this sector has made towards alleviating unemployment. Moreover, one cannot ignore the progress that has been made by the South African Government in improving the legal status and working conditions (in theory, at least) of domestic workers through statutes such as the Sectoral Determination 7 of Domestic Workers.

The main challenge remains that domestic workers work in private spaces (homes of their employers), where the government has very limited access to ensure adequate implementation of domestic worker protections. This is what makes the industry so volatile. Still, the government has met with criticisms from various parties for failure to balance the asymmetrical power relations within the domestic sector. A recommendation that can be made is for the government, employers, domestic trade unions, labour lawyers, and gender scholars to come together to formulate a working solution for the key role players, namely domestic workers, employers, and law enforcement agents. This will not be an easy undertaking, since there are various players with varying interests involved. However, establishing a platform where the different stakeholders can engage in debate and negotiate a settlement is a step in the right direction.

Written by Palesa Rose Nqambaza ⁽¹⁾

NOTES:

(1) Palesa Rose Nqambaza is a Research Associate with CAI and has a keen interest in gender research. Contact Palesa through CAI’s Rights In Focus unit ( rights.focus@consultancyafrica.com). Edited by Kate Morgan.
(2) According to Stats SA, in the second quarter of 2013, unemployment stands at 25.6%.
(3) Basic Conditions of Employment Act No. 75 of 1997, Sectoral Determination 7, Cape Town: http://www.labour.gov.za.
(4) Du Preez, J., et al., 2010. The employment relationship in the domestic workspace in South Africa: Beyond the apartheid legacy. A Journal of African Studies, 36(2), pp. 395-409.
(5) ANC website, http://www.anc.org.za.
(6) According to the Bantu Authorities Act, Act No. 68 of 1951 and the Natives Laws Amendment Act of 1952, black people were not allowed to reside in areas that were not specifically designated to them. As a result, they needed to obtain work permits to prove that they were employed in a particular area in order to reside there; otherwise, they would be taken back to homelands (Bantustans) designated for black people.
(7) Matjeke, A., Viljoen, J.M. and Blaauw, P.F., 2012. The effect of labour market regulation on domestic workers in Orchards and Soshanguve, Pretoria. The South African Journal of Resource Management, 1(1), http://www.sajhrm.co.za; Bantustans refer to former homelands that served as reserves for black people. They include places such as Transkei, Venda, Bophutatswana, Ciskei, Kwazulu, Lebowa and QwaQwa.
(8) International Labour Organization website, http://www.ilo.org.
(9) Magwaza, T., 2008. Effects of domestic workers Act in South Africa: A steep road to recognition. Agenda, 22(78), pp. 79-92.
(10) Du Preez, J., et al., 2010. The employment relationship in the domestic workspace in South Africa: Beyond the apartheid legacy. A Journal of African Studies, 36(2), pp. 395-409.
(11) Matjeke, A., Viljoen, J.M. and Blaauw, P.F., 2012. The effect of labour market regulation on domestic workers in Orchards and Soshanguve, Pretoria. The South African Journal of Resource Management, 1(1), http://www.sajhrm.co.za.
(12) Part-time workers work fewer hours and days than full-time workers; this in turn affects the amount of money they earn, since fewer hours mean fewer wages.
(13) Temporary workers are workers that hold a certain position only for a certain period, after which their employment is terminated. Periods could be seasonal or during certain months or even days.
(14) Cock, J., 1980. Black and white women: A socio-historical study of domestic workers and their employers in the Western Cape. Unpublished doctoral thesis. Rhodes University, South Africa, http://eprints.ru.ac.za.
(15) Du Preez, J., et al., 2010. The employment relationship in the domestic workspace in South Africa: Beyond the apartheid legacy. A Journal of African Studies, 36(2), pp. 395-409.
(16) Ibid.
(17) Basic Conditions of Employment Act No. 75 of 1997, Sectoral Determination 7, Cape Town: http://www.labour.gov.za
(18) Matjeke, A., Viljoen, J.M. and Blaauw, P.F., 2012. The effect of labour market regulation on domestic workers in Orchards and Soshanguve, Pretoria. The South African Journal of Resource Management, 1(1), http://www.sajhrm.co.za.
(19) Basic Conditions of Employment Act No. 37 of 1993, Cape Town: http://www.parliament.gov.za.
(20) Ibid.
(21) Basic Conditions of Employment Act No. 75 of 1997, Sectoral Determination 7, Cape Town: http://www.labour.gov.za.
(22) Ibid.
(23) Magwaza, T., 2008. Effects of domestic workers Act in South Africa: A steep road to recognition. Agenda, 22(78), pp. 79-92.
(24) Matjeke, A., Viljoen, J.M. and Blaauw, P.F., 2012. The effect of labour market regulation on domestic workers in Orchards and Soshanguve, Pretoria. The South African Journal of Resource Management, 1(1), http://www.sajhrm.co.za.
(25) Du Preez, J., et al., 2010. The employment relationship in the domestic workspace in South Africa: Beyond the apartheid legacy. A Journal of African Studies, 36(2), pp. 395-409.
(26) My Wage website, 2013, http://m.mywage.co.za.
(27) Ibid.
(28) Matjeke, A., Viljoen, J.M. and Blaauw, P.F., 2012. The effect of labour market regulation on domestic workers in Orchards and Soshanguve, Pretoria. The South African Journal of Resource Management, 1(1), http://www.sajhrm.co.za.
(29) Reisner, B. ‘Domestic worker sector’, Law 24, 21 September 2009, http://www.law24.com.
(30) ‘Domestic workers learn their rights’, Joburg, 2008, http://www.joburg.org.za.
(31) Sibaya, T., 2006. An investigation to assess whether or not the employers of domestic workers do comply with the minimum conditions as laid down in: Sectoral Determination 7: Domestic Worker Sector. Unpublished masters thesis. University of Kwazulu-Natal, South Africa, http://researchspace.ukzn.ac.za.
(32) The author acknowledges other factors that could have contributed to the decrease of employment for domestic workers, such as inflation causing a rise in food and petrol prices.
(33) Matjeke, A., Viljoen, J.M. and Blaauw, P.F., 2012. The effect of labour market regulation on domestic workers in Orchards and Soshanguve, Pretoria. The South African Journal of Resource Management, 1(1), http://www.sajhrm.co.za.
(34) ‘Number of domestic workers in South Africa has declined’, My Broadband, 31 January 2013, http://mybroadband.co.za.
(35) Du Preez, J., et al., 2010. The employment relationship in the domestic workspace in South Africa: Beyond the apartheid legacy. A Journal of African Studies, 36(2) ,pp. 395-409.
(36) Ibid.
(37) Ibid.
(38) Ibid.