Direct Request (CEACR) - adopted 2019, published 109th ILC session (2021)

Domestic Workers Convention, 2011 (No. 189) - South Africa (Ratification: 2013)

Article 3(2)(a) of the Convention. Freedom of association and collective bargaining. In its previous comments, the Committee requested the Government to provide information regarding measures taken or envisaged to ensure the protection of the right of domestic workers, including domestic farmworkers, to freedom of association, as well as their right to collectively bargain. In its response, the Government indicates that freedom of association and the right to collectively bargain are fundamental rights to which every worker is entitled, including domestic and farmworkers, and is protected under the Labour Relations Act No. 66 of 1995 (as amended), as well as under section 27 of the Constitution of South Africa. It further indicates that the Part C of the Act provides the right for representatives of trade unions to create mechanisms for collective bargaining between trade unions and employers or employers’ organizations. The Committee notes that a few bargaining councils have been established and are currently operating in various sectors, such as the building industry, the motor industry, the restaurant, catering and similar trades; however, no councils have yet been established in the domestic work sector. The Committee requests the Government to provide updated information on any measures taken or envisaged with a view to promoting the right of domestic workers to form and join organizations of their own choosing, as well as the right to collectively bargain, taking account of the particular characteristics of domestic work. In addition, the Committee requests the Government to supply information with respect to any measures taken or envisaged to establish a bargaining council in the domestic work sector, as well as any other developments in respect to the exercise of domestic workers’ freedom of association and collective bargaining rights.

Article 8(4). Migrant domestic workers. The Committee previously requested the Government to provide information on measures taken to ensure the effective application of Article 8 of the Convention, including measures taken or envisaged to protect the rights of female migrant domestic workers. The Committee also requested the Government to provide information on the conditions under which migrant domestic workers in South Africa would be entitled to repatriation in accordance with Article 8(4) of the Convention. The Government once again refers to the African Union Special Initiative on Domestic Workers of 2015, which seeks to facilitate the integration of domestic workers within the relevant labour market institutions, recognizing that female domestic workers are one of the most vulnerable categories of workers in Africa. The Committee notes, however, that the Government does not provide any information in respect of specific measures aimed at safeguarding the rights of female migrant domestic workers and protecting them from abuse or exploitation. With regard to the repatriation of migrant domestic workers, the Government refers to the bilateral agreement between South Africa and Lesotho, providing that migrant domestic workers must be issued with a written job offer, referred to as “written particulars of employment”, before they cross national borders for the purpose of taking up domestic work. The job offer contains a provision that, on termination of employment, or resignation, the domestic workers should be repatriated to their country at the cost of the employer. The Committee reiterates its request that the Government provide information on any measures taken or envisaged to protect the rights of female migrant domestic workers under national laws or regulations, bilateral, multilateral, regional agreements or other arrangements.

Article 9(c). Possession of travel and identity documents. The Committee notes that, once again, the Government provides no information regarding the manner in which it is ensured that domestic workers are entitled to keep their travel and identity documents in their possession, as required by Article 9. The Committee therefore reiterates its request that the Government provide information on the manner in which effect is given to this provision of the Convention.

Articles 10 and 11. Equal treatment and minimum wage. The Committee requested the Government to provide information on measures taken to ensure equal treatment between domestic workers and other workers in respect of terms and conditions of employment, including measures taken to ensure that the remuneration of domestic workers is established without discrimination based on sex. The Government once again indicates that, pursuant to the Basic Conditions of Employment Act, domestic workers are entitled to the same terms and conditions of work, including hours of work, overtime compensation, periods of daily and weekly rest and annual leave, as other workers. In respect of minimum wage protections for domestic workers, the Committee notes that section 6(6)(1) of the National Minimum Wage Act, 2018 (Act No. 9) sets the national minimum wage at R20 per hour. In contrast, the national minimum wage for domestic workers is inferior to the national minimum wage rate. Section 6(6)(2)(b)) of the National Minimum Wage Act, 2018, sets the minimum wage for domestic workers at R15 per hour, whereas section 6(6)(2)(a) of the Act sets the national minimum wage for farm workers – defined to include persons performing domestic work on a farm – is set at R18 per hour. The Committee notes that both rates are lower than the minimum rate of R20 per hour applicable to workers generally. The Committee requests the Government to take measures to ensure that domestic workers receive the same minimum wage rate to which other workers are entitled. It further reiterates its request that the Government provide information on measures taken to ensure that the remuneration of domestic workers is established without discrimination based on sex.

Article 13. Occupational health and safety. The Committee previously requested the Government to provide information on the application of Article 13 of the Convention, including up-to-date information on measures taken or contemplated to ensure the occupational health and safety of domestic workers, taking into account the particular characteristics of domestic work. The Government reports that domestic workers employed in a private household are still excluded from the scope of the Compensation for Occupational Injuries and Diseases Act (COIDA) and their only recourse is to institute civil proceedings against their employers for damages suffered due to an occupational injury or disease. The Committee notes the Government’s indication that South Africa's domestic workers are now on the verge of being covered by the COIDA, as soon as the parliamentary process is finalized. The Government indicates that. until the inclusion of domestic workers is confirmed, employers should nonetheless show foresight and evaluate their domestic workplaces, taking reasonable measures to ensure a safe working environment for their domestic workers. In this regard, the Committee notes that the High Court of South Africa at Pretoria recently ruled that the exclusion of domestic workers from the COIDA is unconstitutional (Mahlangu v The Minister of Labour (Mahlangu) – 23 May 2019). The Committee requests the Government to provide detailed updated information on progress made in ensuring the occupational health and safety of domestic workers, as well as in ensuring that domestic workers employed in private households are included in the scope of the Compensation for Occupational Injuries and Diseases Act (COIDA).

Article 14. Social security. The Committee notes the Government’s reply to its previous request regarding the application of this provision of the Convention, which replies fully to its request.

Article 15. Protections against abusive employment practices. The Committee reiterates its request that the Government provide information on the measures taken to implement the provisions of this Article, including information on consultations that have taken place with the social partners as well as with organizations representative of domestic workers and those representative of employers of domestic workers, if any.

Article 17. Complaints mechanisms. Labour inspection. The Government once again indicates that domestic workers have the same rights as other workers to lodge complaints with the inspection and enforcement services under South African labour legislation. In this regard, and recalling the vulnerable situation of domestic workers, the Committee reiterates its request that the Government provide information regarding specific measures taken or envisaged to ensure the effectiveness and accessibility of complaints mechanisms for the protection of the rights of domestic workers. In addition, the Committee requests the Government to provide information regarding labour inspection in the domestic work sector, including statistical information on the number of inspections carried out, the number and type of violations identified and the sanctions imposed.

Judicial decisions. The Committee reiterates its request that the Government provide information regarding any decisions issued by the courts or by the Conciliation, Mediation and Arbitration Commission, relevant to the application of the Convention.