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Domestic Worker Act – all you need to know
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Domestic Worker Act – all you need to know

Ruth kloppersBy Ruth Kloppers

Domestic workers, nanny, gardeners, cooks, cleaners and any staff that work in your home, are to be considered by the Domestic worker act. Prior to 2002, when the Domestic Worker Act (Sectoral Determination 7 of the Basic Conditions of Employment Act) was finalised, there was almost no law pertaining to a very large segment of our workforce – domestic staff. It was almost laughable that such a large and valuable resource had almost no legal compass, and was almost negligibly recognised in terms of the labour law. Up until this point, there was very little governance in terms of what domestic workers would earn, how many hours they would work, and how to legally manage the work relationship.

The law is now very specific in terms of the rights of both the employer of domestic staff, and the rights of the domestic staff as well. This article aims to simplify the Act for you, so that you know what to do, and how to stay on the right side of the Act.

Firstly, the most important point to consider is that the Act encompasses anyone that works in your home, and forms part of your domestic staff, that includes: the domestic worker, gardener, houseman, cleaning lady, laundry lady, nanny, care-givers, drives, au-pair, cook, or anyone else working in a ‘domestic’ environment, whether as permanent staff or contractors. No person under the age of 15 may be employed in this sector.

WHAT MUST I PAY MY DOMESTIC STAFF?

In November of every year, the legal minimum wage is reviewed and legislated. In most large towns and cities, the minimum wage will be higher than in remote or agricultural areas. At present (to be reviewed in November 2014, and will likely increase by +-7%), the legal minimum wage for anyone in a large city or town, who works more than 27hours per week is R4,10per hour (a minimum of R1877.70pm). Anyone working less than 27hours per week is R4,51per hour. Important to note, though, is that this is the LEGAL MINIMUM that someone may earn, but this is often not MARKET RELATED salary. The legal minimum wage is suitable mainly for staff that have no experience or training. Most staff that have good experience, with added training and solid references will expect salaries much higher than this. At present, we are seeing that experienced domestic workers that reside with employers are looking at earning R2500pm or more. Candidates with experience, that travel daily, and have the added cost of transport are easily commanding salaries ofR3500pm upwards.

Anyone that works in excess of the negotiated work hours, must be paid overtime pay. Important to note at this point is that the act categorically states that a domestic worker may not work more than 45 hours per week . Anything over and above 45 hours, must be paid as overtime. According to the Act, a domestic worker cannot be forced to work public holidays (even if the domestic worker is not local, public holidays still apply for your domestic worker).

There are two kinds of overtime:

1)      Normal Overtime – this is any extra hours worked Monday to Saturday. Normal overtime is calculated at 1,5 times the normal hourly pay that your domestic receives. For example, if your domestic received R10ph, normal overtime pay will be R10 X 1,5 = R15per hour.

2)      Double Pay Overtime – this is any extra hours that your domestic worker may work on Sundays or Public Holidays, and the domestic must be paid double pay for this. For example, if your normal hourly pay is R10ph, then this overtime is calculated as: R10 x 2 = R20 per hour.

WHAT YOU CAN AND CANNOT DEDUCT FROM EMPLOYEES PAY?

The new Act is very strict in telling us what we can, and cannot deduct from an employees wages.

Important to note is that according to the new law ALL Domestic staff must be registered with the Unemployment Insurance Fund (UIF). This is applicable for locals and foreigners alike. Any domestic worker that works more than 27 hours per MONTH must be registered. In order to contribute towards UIF, an employer will register himself/herself as an employer, with the department of labour. You will then be given a “contributor number”, which you will use when declaring payments. Your domestic worker is then registered as your employee (as a beneficiary under this contributor number).

Permissable Deductions – that you may deduct from your staff:

  • UIF – a total of 2% of the domestic workers salary is paid to UIF each month. The employer will contribute 1% from his/her pocket, and 1% may be deducted from the employee
  • Medical Insurance – this is not a “must”, but if agreed upon by employer and employee then the amount (or part thereof) can be deducted from the salary. The employee cannot be forced to have medical insurance, this is by mutual agreement.
  • Savings, Pension Fund, Loans – If the employee/employer have mutually agreed to put aside savings, this may be deducted.
  • Ordered Account Payment – if an employer has been ordered to deduct money from an employee to pay an outstanding account.

Impermissable Deductions – that you may not deduct:

  • Any amount greater than earnings – you cannot deduct more money than the domestic worker is due to earn
  • Breakages – in terms of the law, it is ILLEGAL to deduct any amount from an employees wage for breakages of any items, including crockery, appliances etc
  • Damages – you may not deduct money for damage to property (for example, clothes burnt during ironing). For this, a warning must be issued and disciplinary action taken
  • Meals Provided During Work Time cannot be deducted or paid for by employer. If the employer offers to provide meals, they cannot charge the employee for them
  • Clothing used for the commission of work (i.e uniforms), where the employer has instructed they are worn.
  • Work Equipment – work equipment required is to be paid for and provided by the employer, and may not be deducted from the employees pay.

Every employee MUST receive a payslip in detail. Below is an example:

ruth table

 

 

 

 

 

 

 

 

 

 

 

 

THE EMPLOYMENT CONTRACT – WHAT MUST I PUT IN THIS?

The law prescribes that every domestic worker MUST have a signed employment contract. This means that any employer who does not give their staff a contract is immediately in breach of the law, as is any employee that refuses to sign a contract (this can count against you if ever the relationship sours and goes to the CCMA for arbitration). In the absence of a contract, this law still stands as is. The contract should be reviewed each year.

The employment contract is to be created in writing, and must be signed by both employer and employee.

The following information MUST be included:

  •  The full name and address of the employer
  •  The name and occupation of the domestic worker, or a brief description of the work for which he/she is employed
  •  The place of work, and where he/she is required or permitted to work
  •  Date of employment
  •  The domestic worker’s ordinary hours of work and days of work
  •  The domestic worker’s wage or rate and method of payment
  •  The rate of pay for overtime work
  •  Any other cash payments he/she is entitled to
  •  Any payment in kind he/she is entitled to and the value of payment in kind
  •  How frequently wages will be paid
  •  Any deductions to be made from wages
  •  The leave he/she is entitled to
  •  The period of notice required to terminate employment, or if employment is for a specified period, the date when employment is to terminate.

We can provide you with a basic contract, free of charge, please email me on ruth@helpathome.co.za and I will gladly send you one.

WHAT YOU SHOULD REMEMBER ABOUT WORK TIMES?

 The most important item to remember is that, regardless of whether an employee resides with you, or is considered a member of the family, the work hours he/she works are prescribed by law.

The employee may not work more than 45 ordinary hours per week.

Anything over these ordinary 45 hours is considered overtime and must be paid as such.

No more than 3 hours overtime may be worked on a normal 9 hour work day (in other words, your employee, with overtime, cannot work more than 12 hours per day).

An employee may not work more than 15 hours overtime per week.

If the employee is on “standby” after hours, anytime from 8pm to 6am (being there if needed, but not actually on duty), a stand-by allowance must be paid, of at least R20per hour.

A 1 hour lunch break is required, by law, after 5 hours work. The lunch break forms part of the 45 hour work week.

An employee may NOT work 7 days consecutively.

HOW MUCH LEAVE MUST MY EMPLOYEE GET?

There are four types of leave that every employee is entitled to:

 Annual leave – full time employees (who work Monday to Friday) are entitled 15 days leave per year (annual leave is earned at 1,25 days leave, for every month worked). To calculate leave for workers that work other hours, the calculation is that for every 17 days your employee works, he/she is entitled to one day’s leave. Annual leave means that the employee takes time off, but IS still paid for this off-time. If the employee does not take their leave after 12 months, by agreement with the employer, they can choose to have this leave “paid” to them (the leave days are then paid out in monetary value).

Sick Leave – Sick leave is worked on a 3yr cycle. An employee receives 30 days sick leave over 3 years. If, for example, your employee uses all this leave up in the first year, then any sick leave taken (over 30 days, for the following two years) will be UNPAID leave, and can be deducted from the employees pay. Important to note: if an employee is ill on either a Monday or a Friday, or any day before or after a public holiday, they are legally required to provide a valid sick note (not a stamp in a clinic card, but an actual note from a medical professional).

Maternity Leave – There is no law stating that an employer must pay an employee any salary amount during maternity leave. Most employers do not pay a salary in this time, as they usually need to employ a ‘temp’ worker, and pay this ‘temp’. Legally, an employee is not allowed to work for a minimum of 6 weeks after giving birth. Four months UNPAID maternity leave may be taken.

Family Responsibility Leave – This is a total of 5 days per year that an employee may take in the event of serious illness or death of an IMMEDIATE relative, such as spouse, child, parent or sibling. Any leave over these 5 days will be UNPAID and may be deducted from the employees wages.

HOW DO I TERMINATE EMPLOYMENT?

A probation period can be given at the start of employment. The probation period cannot be longer than 3 months, and during this time, either the employer or employee can terminate employment with immediate effect, for any reasonable reason.

A contract of employment may be terminated with notice of not less than one week if the domestic worker has been employed for six months or less.

Notice of four weeks is required if the domestic worker has been employed for six months or more.

Live-in domestic workers are allowed to stay on the premises for a month (notice period) or may agree to pay for the accommodation.

An employer who has to dismiss an employee due to a change in his/her economic, technological or structural set-up, called operational requirement in the determination is responsible for severance pay to the employee.

Severance pay is payable only, if there was no alternative employment. At least one weeks pay for every completed twelve months of continuous service.

On termination of employment an employee is entitled to a certificate of service.

 An employer who has to dismiss an employee due to a change in his/her economic, technological or structural set-up, called operational requirement in the determination is responsible for severance pay to the employee.

Severance pay is payable only, if there was no alternative employment. At least one weeks pay for every completed twelve months of continuous service.

On termination of employment an employee is entitled to a certificate of service.

 PLEASE NOTE:

 If you require any advice or assistance with regards to any of the above, please feel free to email ruth@helpathome.co.za . we are happy to advise you, free of charge.