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Marius Scheepers & Company Attorneys |
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Domestic Worker Sector (updated 01/03) SECTORAL
DETERMINATION 7: DOMESTIC WORKER I,
Membathisi Mphumzi Shepherd Mdladlana, Minister of Labour, in terms of
section 51 (1) of the Basic Conditions of Employment Act 75 of 1997, make a
Sectoral Determination establishing conditions of employment and minimum
wages for employees in the Domestic Worker Sector, South Africa, which
appears in the schedule hereto and determine 1 September 2002 as the date
from which the provisions of this Sectoral Determination shall be binding. M M SCHEDULE TABLE OF CONTENTS PART A: Application 1. Application PART B: Wages 2.Wages 3. Annual wage increase 4. Calculation of wages 5. Payment of wages 6. Information concerning pay 7. Prohibited acts concerning payment of wages 8. Deductions PART C: Particulars
of employment 9. Written particulars of employment PART D: Hours of
work 10. Ordinary hours of work 11. Overtime 12. Payment for overtime 13. Night work 14. Standby 15. Meal intervals 16. Rest period 17. Payment for work on Sunday 18. Public holidays PART E: Leave 19. Annual leave 20. Sick leave 21. Family responsibility leave 22. Maternity leave PART F: Prohibition
of child labour and forced labour 23. Prohibition of child labour and forced labour PART G: Termination
of employment 24. Termination 25. Payment on termination 26. Accommodation on termination 27. Severance pay 28. Certificate of service 29. Employment services 30. Keeping of the sectoral determination 31. What words mean ANNEXURES • Guidelines
on the sectoral determination • Written
particulars of employment • Job
description • Certificate
of service •Payslip PART A: APPLICATION 1. APPLICATION (1) The determination applies to the employment
of all domestic workers in the (a) employed or supplied by employment
services; (b) employed as independent contractors. (2) This determination does not apply to
domestic workers- (a) employed on farms on which employees
performing agricultural work are employed; (b) covered by another sectoral determination
in terms of the Basic Conditions of Employment Act; or (c) covered by an agreement of a bargaining
council in terms of the Labour Relations Act, 1995. (3) Only clauses 2 and 3 setting minimum wages
apply to domestic workers who work less than 24 hours per month for an
employer. (4) The provisions of the Basic Conditions of
Employment Act apply to all domestic workers covered by this determination
and their employers in respect of any matter not regulated by this sectoral
determination. PART B: WAGES 2. WAGES (1) With effect from (2) An employer must pay a domestic worker who
works more than 27 ordinary hours of work per week- (a) at least the weekly or monthly wage set out
in Table 1; or (b) by agreement between the employer and
domestic worker, at least the hourly rate set out in Table 1 for every hour
or part of an hour that the domestic worker works. (3) An employer must pay a domestic worker who
works 27 or less ordinary hours of work per week- (a) at least the weekly or monthly wage set out
in Table 2; (b) by agreement between the employer and
domestic worker, at least the hourly rate set out in Table 2 for every hour
or part of an hour that the domestic worker works. (4) A domestic worker who works for less than
four hours on any day must be paid for four hours’ work on that day. 3. ANNUAL WAGE
INCREASES (1) Every domestic worker must be granted wage
increases of at least 8% on (2) The wage increases in terms of subclause (1)
must be calculated on the domestic worker’s actual wage in the preceding
month. (3) If the annual increase in the Consumer Price
Index reported by Statistics South Africa six weeks before a wage increase in
terms of this clause comes into effect is 10% or higher, domestic workers
will be entitled to receive a wage increase equivalent to the increase in the
Consumer Price Index. (4) Any wage increase in excess of 8% required in terms of subclause (3) must be published in the Government Gazette as an amendment to this sectoral determination.
4. CALCULATION
OF WAGES (1) The wage of a domestic worker must be
calculated by reference to the domestic worker’s ordinary hours of work. (2) For the purposes of any calculation in terms
of this determination- (a) the hourly wage of a domestic worker is
obtained by- (i) dividing the daily wage by the number of
ordinary hours worked in a day; or (ii) dividing the weekly wage by the number of
ordinary hours worked in a week. (b) the daily wage of a domestic worker is
obtained by- (i) multiplying the hourly wage by the number
of ordinary hours worked in a day; or (ii) dividing the weekly wage by the number of
ordinary hours worked in a week. (c) the weekly wage of a domestic worker is
obtained by- (i) multiplying the hourly wage by the number
of ordinary hours worked in a week; or (ii) multiplying the daily wage by the number of
days worked in a week; or (iii) dividing the monthly wage by four and
one-third (13/3). (d) the monthly wage of a domestic worker is
obtained by multiplying the weekly wage by four and a third (13/3). 5. PAYMENT OF
WAGES (1) An employer must pay a domestic worker- (a) in South African currency; (b) daily, weekly, fortnightly or monthly; and (c) in cash, by cheque or by direct deposit
into an account designated by the domestic worker. (2) Any payment in cash or by cheque must be
given to each domestic worker- (a) at the workplace; (b) during the domestic worker’s working hours;
and (c) in a sealed envelope which becomes the
property of the domestic worker. (3) An employer must pay a domestic worker on
the normal pay day agreed to by the domestic worker. 6. INFORMATION
CONCERNING PAY (1) On every pay day, the employer must give the
domestic worker a statement showing- (a) the employer’s name and address; (b) the domestic worker’s name and occupation; (c) the period in respect of which payment is
made; (d) the domestic worker’s wage rate and
overtime rate; (e) the number of ordinary hours worked by the
domestic worker during that period; (f) the number of overtime hours worked by the
domestic worker during that period; (g) the number of hours worked by the domestic
worker on a public holiday or on a Sunday; (h) the domestic worker’s wage; (i) details of any other pay arising out of
the domestic worker’s employment; (j) details of any deductions made; and (k) the actual amount paid to the domestic
worker. (2) An employer must retain a copy or record of
each statement for three years. 7. PROHIBITED
ACTS CONCERNING PAY (1) An employer may not receive any payment
directly or indirectly, or withhold any payment from a domestic worker in
respect of- (a) the employment or training of that domestic
worker; (b) the supply of any work equipment or tools; (c) the supply of any work clothing; or (d) any food supplied to the domestic worker
while the domestic worker is working or is at the workplace. (2) An employer may not require a domestic
worker to purchase any goods from the employer or from any person, shop or
other business nominated by the employer. (3) An employer may not levy a fine against a
domestic worker. (4) An employer may not require or permit a
domestic worker to- (a) repay any pay except for overpayments
previously made by the employer resulting from an error in calculating the
domestic worker’s pay; or (b) acknowledge receipt of an amount greater
than the pay actually received. 8. DEDUCTIONS An employer may not make any
deduction from a domestic worker’s pay except- (a) a deduction, calculated on the basis of the
domestic worker’s wage, proportionate to the length of any period that the
domestic worker is absent from work, other than an absence on paid leave or
at the instance of the employer; (b) deduction of not more than 10% of the wage
for a room or other accommodation supplied to the domestic worker by the
employer if the accommodation- (i) is weatherproof and generally kept in good
condition; (ii) has at least one window and door, which can
be locked; (iii) has a toilet and bath or shower, if the
domestic worker does not have access to any other bathroom. (c) with the written consent of the domestic
worker, a deduction of any amount which the employer has paid or has
undertaken to pay- (i) to any holiday, sick, medical, insurance,
savings, provident or pension fund of which the domestic worker is a member, (ii) to any registered trade union in respect of
subscriptions; (iii) to any banking institution, building
society, insurance business, registered financing institution or local
authority in respect of a payment on a loan granted to the domestic worker to
acquire a dwelling; (iv) to any person or organisation in respect of
the rent of a dwelling or accommodation occupied by the domestic worker; (d) a deduction, not exceeding one-tenth of the
wage due to the domestic worker on the pay-day concerned, towards the
repayment of any amount loaned or advanced to the domestic worker by the
employer; or (e) a deduction of any amount which an employer
is required to make by law or in terms of a court order or arbitration award. PART C: PARTICULARS OF EMPLOYMENT 9. WRITTEN
PARTICULARS OF EMPLOYMENT (1) An employer must supply a domestic worker,
when the domestic worker starts work with the following particulars in
writing- (a) the full name and address of the employer; (b) the name and occupation of the domestic
worker, or a brief description of the work for which the domestic worker is
employed; (c) the place of work, and where the domestic worker
is required or permitted to work at various places, an indication of this; (d) the date on which the employment began; (e) the domestic worker’s ordinary hours of
work and days of work; (f) the domestic worker’s wage or the rate and
method of payment; (g) the rate of pay for overtime work; (h) any other cash payments that the domestic
worker is entitled to; (i) any payment in kind that the domestic
worker is entitled to and the value of the payment in kind; (j) how frequently wages will be paid; (k) any deductions to be made from the domestic
worker’s wages; (l) the leave to which the domestic worker is
entitled to; and (m) the period of notice required to terminate
employment, or if employment is for a specified period, the date when
employment is to terminate. (2) If a domestic worker is not able to
understand the written particulars, the employer must ensure that they are
explained to the domestic worker in a language and in a manner that the
domestic worker understands. (3) The employer must revise the written
particulars if the employer and domestic worker agree to any change in the
domestic worker’s terms of employment. (4) The employer must sign the written
particulars and any change in the terms of clause (3). (5) The employer may require the domestic worker
to- (a) acknowledge receipt of the written
particulars in writing on a copy of the particulars; or (b) if the domestic worker is unable to or
refuses to acknowledge receipt, record that the domestic worker has received
a copy of the written particulars. (6) An employer must retain a copy of the
written particulars while the domestic worker is employed and for three years
thereafter. PART D: HOURS OF WORK 10. ORDINARY
HOURS OF WORK An employer may not require or permit
a domestic worker to work more than- (a) 45 hours in any week; and (b) nine hours on any day if the domestic
worker works for five days or less in a week; or (c) eight hours in any day if the domestic
worker works on more than five days in any week. 11. OVERTIME An employer may not require or
permit a domestic worker- (a) to work overtime except in accordance with
an agreement concluded by the employer and the domestic worker; (b) to work more than 15 hours’ overtime a
week; or (c) to work more than 12 hours, including
overtime, on any day. 12. PAYMENT OF
OVERTIME (1) An employer must pay a domestic worker at
least one and one-half times the domestic worker’s wage for overtime worked. (2) Despite subclause (1), an agreement may
provide for an employer to- (i) pay a domestic worker not less than the
domestic worker’s ordinary wage for overtime worked and grant the domestic
worker at least 30 minutes’ time off on full pay for every hour of overtime
worked; or (ii) grant a domestic worker at least 90 minutes’
paid time off for each hour of overtime worked. (3) (a) An employer must grant paid time off in
terms of subclause (2) within one month of the domestic worker becoming
entitled to it. (b)
An agreement in writing may increase the period contemplated by paragraph (a)
to twelve months. (c) An agreement concluded in terms of paragraph
(b) with a domestic worker when the domestic worker commences employment, or
during the first three months of employment, is only valid for one year. (4) Any time worked on a Sundays or public
holidays must be paid in accordance with the provisions for Sundays and
public holidays in clauses 17 and 18. 13. NIGHT WORK (1) For the purposes of this clause, “night
work” means work performed after (2) An employer may only require or permit a
domestic worker to perform night work, if agreed in writing and if- (a) the domestic worker is compensated by the
payment of an allowance; and (b) the domestic worker resides at the
workplace or transport is available between the domestic worker’s place of
residence and the workplace at the beginning and end of the domestic worker’s
shift. (3) The amount of the allowance in terms of
clause 1(a) must be agreed between the employer and the domestic worker. (4) An employer who requires a domestic worker
to perform work for a period of longer than one hour after 22:00 and before
06:00 the next day at least five times per month or 50 times per year must
comply with sections 17(3) and (4) of the Basic Conditions of Employment Act. 14. STANDBY (1) For the purposes of this clause, “standby”
means any period between (2) An employer may only require or permit a
domestic worker to be on stand by if it is agreed in writing and if the
domestic worker is compensated by the payment of an allowance of at least
R20,00 per shift. (3) An employer may not require or permit a
domestic worker to be on stand by more than five times per month or 50 times
per year. (4) An employer may only require or permit a
domestic worker to perform work which is required to be done without delay. (5) An employer must pay a domestic worker for
any time worked in excess of three hours during any period of stand-by at- (a) the domestic worker’s overtime rate
calculated in terms of clause 12(1); or (b) grant the domestic worker paid time-off in
terms of clauses 12(2) and (3). 15. MEAL
INTERVALS (1) An employer must give a domestic worker who
works continuously for more than five hours a meal interval of at least one
continuous hour. (2) During a meal interval, a domestic worker
may be required or permitted to perform only duties that cannot be left
unattended and cannot be performed by another domestic worker. (3) A domestic worker must be paid- (a) for a meal interval in which the domestic
worker is required to be available for work; (b) for any portion of a meal interval that is
in excess of 75 minutes, unless the domestic worker lives at the workplace. (4) For the purpose of subclause (1), work is
continuous unless it is interrupted by a meal interval in accordance with
this clause. (5) An agreement in writing may- (a) reduce the meal interval to not less than
30 minutes; (b) dispense with a meal interval for a
domestic worker who works fewer than six hours on a day. (6) Whenever an employer is required to give a
domestic worker a second meal interval because of overtime worked, that
interval may be reduced to not less than 15 minutes. 16. REST PERIOD (1) An employer must grant a domestic worker- (a) a daily rest period of at least twelve
consecutive hours between ending work and starting work the next day; (b) weekly rest period of at least 36
consecutive hours which, unless otherwise agreed, must include a Sunday. (2) A daily rest period in terms of subclause (1)(a)
may, by written agreement, be reduced to 10 hours for a domestic worker- (a) who lives at the workplace is situated; and (b) whose meal interval lasts for at least
three hours. (3) Despite subclause (1)(b), an agreement in
writing may provide for a rest period of at least 60 consecutive hours every
second week. 17. PAYMENT FOR
WORK ON SUNDAY (1) An employer must pay a domestic worker who
works on a Sunday- (a) at double the domestic worker’s wage for
each hour worked; or (b) if the work is part of the domestic
worker’s ordinary hours of work, at one and one-half times the domestic
worker’s wage for each hour worked. (2) If the payment calculated in terms of
subclause (1) is less than the domestic worker’s daily wage, the employer
must pay the domestic worker, for the time worked on that Sunday, the
domestic worker’s daily wage. (3) Despite subclauses (1) and (2), an agreement
may permit an employer to grant a domestic worker who works on a Sunday paid
time off equivalent to the difference in value between the pay received by
the domestic worker for working on a Sunday and the pay the domestic worker
is entitled to receive in terms of subclauses (1) and (2) at double the
domestic worker’s wage for each hour worked. (4) (a) A domestic worker must grant paid time
off in terms of subclause (3) within one month of the domestic worker
becoming entitled to it. (b)
An agreement in writing may increase the period contemplated by paragraph (a)
for 12 months. (5) Any time worked on a Sunday by domestic
worker who does not normally work on a Sunday is not taken into account in
calculating a domestic worker’s ordinary hours of work in terms of clause 10,
but is taken into account in calculating the overtime worked by the domestic
worker in terms of clause 11 (1) (b). (6) If a shift worked by a domestic worker falls
on a Sunday and another day, the whole shift is deemed to have been worked on
the Sunday, unless the greater portion of the shift was worked on the other
day, in which case the whole shift is deemed to have been worked on the other
day. 18. PUBLIC
HOLIDAYS (1) An employer may not require a domestic
worker to work on a public holiday, except in accordance with an agreement. (2) If a public holiday falls on a day on which a
domestic worker would otherwise have worked, an employer must pay a domestic
worker- (a) who does not work on the public holiday the
domestic worker’s daily wage; (b) who does work on the public holiday at
least double the daily wage. (3) If a domestic worker who works on a public
holiday on which the domestic worker would not normally work, the employer
must pay that domestic worker an amount equal to- (a) the domestic worker’s daily wage; plus (b) the domestic worker’s hourly wage for each
hour worked on the public holiday. (4) An employer must pay a domestic worker for a
public holiday on the domestic worker’s normal payday. (5) If a shift worked by a domestic worker falls
on a public holiday and another day, the whole shift is deemed to have been
worked on the public holiday, but if the greater portion of the shift was
worked on the other day, the whole shift is deemed to have been worked on the
other day. PART E: LEAVE 19. ANNUAL LEAVE (1) An employer must grant a domestic worker- (a) at least three weeks annual leave on full
pay in respect of each 12 months of employment (the “annual leave cycle”); (b) by agreement, at least one day of annual
leave on full pay for every 17 days on which the domestic worker worked or
was entitled to be paid; or (c) by agreement, one hour of annual leave on
full pay for every 17 hours on which the domestic worker worked or was
entitled to be paid. (2) An employer must grant a domestic worker an additional
day of paid leave if a public holiday falls on a day during a domestic
worker’s annual leave on which the domestic worker would otherwise have
worked. (3) An employer may reduce a domestic worker’s
entitlement to annual leave by the number of days of occasional leave on full
pay granted to the domestic worker at the domestic worker’s request in that
annual leave cycle. (4) An employer must grant- (a) at least three weeks annual leave on full
pay in respect of each 12 months of employment (the “annual leave cycle”) not
later than six months after the end of the annual leave cycle or the year in
which the leave was earned; (b) the leave earned in one year over a
continuous period, if requested by the domestic worker. (5) Annual leave must be taken- (a) in accordance with an agreement between the
employer and employee; or (b) if there is no agreement in terms of
paragraph (a), at a time determined by the employer in accordance with this
section. (6) An employer may not require or permit an employee
to take annual leave during- (a) any other period of leave to which the
employee is entitled in terms of this Chapter; or (b) any period of notice of termination of
employment. (7) An employer may not require or permit a
domestic worker to work for the employer during any period of annual leave. (8) An employer may not pay a domestic worker
instead of granting paid leave in terms of the clause except on termination
of employment in terms of clause 25. (9) An employer must pay a domestic worker leave
pay at least equivalent to the full pay the domestic worker would receive for
working for a period equal to the period of leave calculated on the basis of
the domestic worker’s rate of pay immediately before the period of leave. (10) Leave
pay in terms of clause (9) must be calculated on the basis of the domestic
worker’s rate of pay immediately before the period of leave. (11) An
employer must pay a domestic worker leave pay before the beginning of the
period of leave. 20. SICK LEAVE (1) For purposes of this clause “sick leave
cycle” means the period of 36 months employment with the same employer
immediately following- (a) when the domestic worker commenced work; or (b) the end of the domestic worker’s prior sick
leave cycle. (2) During every sick leave cycle, a domestic
worker is entitled to an amount of paid sick leave equal to the number of
days the domestic worker would normally work during a period of six weeks. (3) Despite subclause (2) during the first six
months of work, a domestic worker is entitled to one day’s sick leave for
every 26 days worked. (4) An employer may, during the domestic
worker’s first leave cycle, reduce the domestic worker’s entitlement to sick
leave in terms of subclause (2) by the number of days’ sick leave taken in
terms of subclause (3). (5) Where an employer, at the request of the
domestic worker, pays fees for a domestic worker’s hospital or medical
treatment, the fees paid may be set off against the worker’s pay. (6) An employer may require a domestic worker
who has been absent from work for more than two consecutive days or on more
than two occasions during an eight-week period to produce a medical
certificate before paying the domestic worker in terms of this clause. (7) The medical certificate in terms of
subclause (6) must- (a) be issued and signed by a medical
practitioner, a traditional healer, a professional nurse who is authorised to
issue certificates, or any ther person who is certified to diagnose and treat
patients and is registered with a professional council, established by an Act
of Parliament; and (b) state that the domestic worker was unable
to work for the duration of the domestic worker’s incapacity. (8) If it is not reasonably practicable for a
domestic worker who lives on the employer’s premises to obtain a medical
certificate, the employer may not withhold payment in terms of this clause
unless the employer provides reasonable assistance to the domestic worker to
obtain the certificate. 21. FAMILY
RESPONSIBILITY LEAVE (1) This clause applies to a domestic worker- (a) who has been employed by an employer for
longer than four months; and (b) who works on at least four days a week for
that employer. (2) An employer must grant a domestic worker, during
each 12 months of employment, at the request of the domestic worker, five
days’ leave, which the domestic worker is entitled to take- (a) when the domestic worker’s child is born; (b) when the domestic worker’s child is sick;
or (c) in the event of the death of- (i) the domestic worker’s spouse or life
partner; or (ii) the domestic worker’s parent, adoptive
parent, grandparent, child, adopted child, grandchildren or sibling. (3) A domestic worker may take family
responsibility leave in respect of the whole or part of the day. (4) Subject to subclause (5), an employer must
pay a domestic worker for a day’s family responsibility leave- (a) the wage the domestic worker would normally
have received for work on that day; and (b) on the domestic worker’s usual payday. (5) Before paying a domestic worker for leave in
terms of this clause, an employer may require reasonable proof of an event
contemplated in subclause (2) for which the leave was required. (6) A domestic worker’s unused entitlement to leave
in terms of this clause lapse at the end of the annual leave cycle in which
it accrues. 22. MATERNITY
LEAVE [i]1 (1) A domestic worker is entitled to at least
four consecutive months’ maternity leave. (2) A domestic worker may commence maternity leave- (a) at any time from four weeks before the
expected date of birth, unless otherwise agreed; or (b) on a date from which a medical practitioner
or a midwife certifies that it is necessary for the domestic worker’s health
or that of her unborn child. (3) A domestic worker may not work for six weeks
after the birth of her child, unless a medical practitioner or midwife
certifies that she is fit to do so. (4) A domestic worker who has a miscarriage
during the third trimester of pregnancy or bears a stillborn child is
entitled to maternity leave for six weeks after the miscarriage or
stillbirth, whether or not the domestic worker had commenced maternity leave
at the time of the miscarriage or stillbirth. (5) A domestic worker must notify an employer in
writing, unless the domestic worker is unable to do so, of the date on which
the domestic worker intends to- (a) commence maternity leave; and (b) return to work after maternity leave. (6) Notification in terms of subclause (5) must
be given- (a) at least four weeks before the domestic
worker intends to commence maternity leave; (b) if it is not reasonably practicable to do
so, as soon as is reasonably practicable. (7) No employer may require or permit a pregnant
domestic worker or a domestic worker who is nursing her child to perform work
that is hazardous to her health or the health of her child. PART F: PROHIBITION OF CHILD LABOUR AND FORCED LABOUR 23. PROHIBITION
OF CHILD LABOUR AND FORCED LABOUR (1) No person may employ as a domestic worker a
child- (a) who is under 15 years of age; or (b) who is under the minimum school leaving age
in terms of any law, if this is 15 or older. [ii]2 (2) No person may employ a child [iii]3
in an employment- (a) that is inappropriate for a person of that
age; (b) that places at risk the child’s well being,
education, physical or mental health, or spiritual, moral or social
development. (3) An employer must maintain for three years a
record of the name, date of; birth and address of every domestic worker under
the age of 18 years employed by them. (4) Subject to the Constitution of the (5) No person may, for their own benefit or for
the benefit of someone else cause, demand or impose forced labour in contravention
of subclause (4). (6) A person who employs a child in
contravention of subclause (1) and (2) or engages in any form of forced
labour in contravention of subclauses (4) and (5) commits an offence in terms
of sections 46 and 48 of the Basic Conditions of Employment Act respectively,
read with section 93 of that Act. PART G: TERMINATION OF EMPLOYMENT 24. TERMINATION
OF EMPLOYMENT (1) A contract of employment terminable at the
instance of a party to the contract may be terminated only on notice of not
less than- (a) one week, if the domestic worker has been
employed for six months or less; (b) four weeks, if the domestic worker has been
employed for more than six months. (2) The employer and domestic worker may agree
to a longer notice period but the agreement may not require or permit a
domestic worker to give a period of notice longer than that required of the
employer. (3) (a) Notice of termination of contract of
employment must be given in writing except when it is given by an illiterate domestic
worker. (b)
If a domestic worker who receives notice of termination is not able to
understand it, the notice must be explained orally by, or on behalf of, the
employer to the domestic worker in an official language the domestic worker
reasonably understands. (4) Notice of termination of a contract of
employment given by an employer must- (a) not be given during any period of leave to
which the domestic worker is entitled in terms of clause 17(1); (b) not run concurrently with any period of
leave to which the domestic worker is entitled in terms of this
determination, except sick leave. (5) Nothing in this clause affects the right of- (a) a dismissed domestic worker to dispute the lawfulness
or fairness of the dismissal in terms of Chapter VIII of the Labour Relations
Act, 1995, or any other law; and (b) an employer or a domestic worker to
terminate a contract of employment without notice for any cause recognized by
law. (6) Instead of giving a domestic worker notice
in terms of this clause, an employer may pay the domestic worker the full pay
the domestic worker would have received if the domestic worker had worked
during the notice period. (7) If a domestic worker gives notice of
termination of employment, and the employer waives any part of the notice,
the employer must pay the full pay referred to in subclause (6), unless the
employer and domestic worker agree otherwise. 25. PAYMENT ON
TERMINATION (1) On termination of employment, an employer
must pay a domestic worker all monies due to the domestic worker for any- (a) wages, allowance or other payments that
have not been paid; (b) paid time-off that the domestic worker is
entitled to in terms of clause 12 or 17 that the domestic worker has not
taken; (c) leave in terms of clause 19 that the
domestic worker has not taken, irrespective of whether the domestic worker
has completed an annual leave cycle or year of service, unless the domestic
worker has not been employed longer than four months. (2) For the purposes of clause 25(1)(c), a
domestic worker is entitled to be paid in respect of any period for which
leave was not granted- (i) one week’s wages for every four months
worked; or (ii) one day’s wages in respect of every 17 days
on which the domestic worker worked or was entitled to be paid. 26. ACCOMMODATION
ON TERMINATION (1) If the employer of a domestic worker who
resides at the workplacor in other accommodation supplied by the employer
terminates the contract of employment of that domestic worker before the date
on which the employer was entitled to do so in terms this clause, the
employer is required to provide the domestic worker with accommodation for a
period of one month or if it is a longer period, until the contract of
employment could lawfully have been terminated. (2) If a domestic worker elects to remain in
accommodation in terms of subclause (8) after the employer has terminated the
domestic worker’s contract of employment in terms of this clause, the
employer may deduct for that period 10% of the amount the employer is
required to pay in terms of this clause as the value of the accommodation. 27. SEVERANCE
PAY (1) For the purposes of this clause,
“operational requirements” means requirements based on the economic,
technological, structural or similar needs of an employer. [iv]4 (2) An employer must pay domestic worker who is
dismissed for reasons based on the employer’s operational requirements
severance pay equal to at least one week’s full pay for each completed year
of continuous service with that employer. (3) A domestic worker who unreasonably refuses
to accept the employer’s offer of alternative employment with that employer
or any other employer, is not entitled to severance pay in terms of subclause
(2). (4) The payment of severance pay in compliance
with this clause does not affect a domestic worker’s right to any other
amount payable according to law. (5) If there is a dispute only about the
entitlement to severance pay in terms of this clause, the domestic worker may
refer the dispute in writing to the CCMA. 28. CERTIFICATE
OF SERVICE On
termination of employment, a domestic worker is entitled to a certificate of
service stating- (a) the domestic worker’s full name; (b) the name and address of the employer; (c) the date of commencement and date of
termination of employment; (d) the title of the job or brief description
of the work for which the domestic worker was employed at the date of
termination; (e) any relevant training received by the
domestic worker; (f) the pay at date of termination; and (g) if the domestic worker requests, the reason
for termination of employment. 29. EMPLOYMENT
SERVICES (1) A domestic worker whose services have been
provided by an employment service is employed by that employment service for
the purposes of this determination if the employment service pays the
domestic worker. (2) An employment service contemplated in
subclause (1) and the client are jointly and severally liable if the
employment service, in respect of a domestic worker who provides services to
that client, does not comply with the determination or any provision of the
Basic Conditions of Employment Act. 30. KEEPING OF
SECTORAL DETERMINATION Every employer
on whom this sectoral determination is binding must keep a copy of the
sectoral determination or an official summary available in the workplace in a
place to which the domestic worker has access. 31. WHAT WORDS
MEAN IN THIS DETERMINATION Any expression
in this determination, which is defined in the Basic Conditions of Employment
Act and is not defined in this clause, has the same meaning as in that Act
and- “agreement” includes a collective
agreement; “Basic
Conditions of Employment Act” means Basic Conditions of Employment Act, 1997
(Act 75 of 1997); “child” means a person who is
under 18 years of age; “day”
means, for the purposes of measuring hours of work, a period of 24 hours
measured from the time when the domestic worker normally commences work; “dispute” includes an alleged
dispute; “domestic
worker” means any domestic worker or independent contractor who performs
domestic work in a private household and who receives, or is entitled to
receive, pay and includes- (a) a gardener; (b) a person employed by a house hold as a
driver of a motor vehicle; and (c) a person who takes care of children, the
aged, the sick, the frail or the disabled; (d) domestic workers employed or supplied by
employment services; “employment
service” means any person who recruits, procures or provides domestic workers
for clients in return for payment, regardless of which party pays the
domestic worker; “full
pay” means wages, overtime pay, allowances and any other payment in money
that a domestic worker is entitled to in consequence of their employment; “incapacity” means inability to
work owing to sickness or injury; “night work” means work performed
after 18:00 and before 06:00 the next day; “ordinary
hours of work” means the hours of work permitted in terms of clause 10; “overtime”
means the time that the domestic worker works during a day or in a week in
excess of ordinary hours of work; “paid
leave” means any annual leave, paid sick leave or family responsibility leave
that a domestic worker is entitled to in terms of Part E of this
determination; “public
holiday” means any day that is a public holiday in terms of the Public
Holiday Act, 1994 (Act 36 of 1994); “wage”
means the amount of money paid or payable to a domestic worker in respect of
ordinary hours of work or, if they are shorter, the hours a domestic worker
normally works in a day or week; “week”
in relation to a domestic worker, means the period of seven days within which the working week of that
domestic worker normally falls; “workplace” means any place where
domestic workers work. GUIDELINES ON WRITTEN PARTICULARS OF EMPLOYMENTS [v]5 1. Notice
period and termination of employment In
terms of the Sectoral Determination, any party to an employment contract must
give written notice, except when an illiterate domestic worker gives it, as
follows: • One week, if employed for six months or
less. • Four weeks if employed for more than six
months. Notice
must be explained orally by or on behalf of the employer to a domestic worker
if he/she is not able to understand it. The
employer is required to provide the domestic worker who resides in
accommodation that is situated on the premises of the employer or that is
supplied by the employer, with accommodation for a period of one month, or if
it is a longer period, until the contract of employment could lawfully have
been terminated. All
monies due to the domestic worker for any wages, allowance or other payments
that have not been paid, paid time-off not taken and pro-rata leave must be
paid. 2. Procedure
for termination of employment Whilst
the contract of employment makes provision for termination of employment, it
must be understood that the services of an employee may not be terminated
unless a valid and fair reason exists and fair procedure is followed. If an
employee is dismissed without a valid reason or without a fair procedure, the
employee may approach the CCMA for assistance. Pro-rata leave and severance pay
might be payable. In the
event of a domestic worker being unable to return to work due to disability,
the employer must investigate the nature of the disability and ascertain
whether or not it is permanent or temporary. The employer must try to
accommodate the employee as far as possible for example, amending or adapting
their duties to suit the disability. However,
in the event of it not being possible for the employer to adapt the domestic
workers duties and/or to find alternatives, then such employer may terminate
the services of the domestic worker. The
Labour Relations Act 66 of 1995 sets out the procedures to be followed at the
termination of services in the Code of Good Practice, in Schedule 8. 3. Wage/Remuneration/Payment There is
a prescribed minimum rate of remuneration. Additional payments (such as for
overtime or work on Sundays or public holidays) are calculated from the total
remuneration as indicated in clause 5.3 of the contract. The total
remuneration is the total of the money received by the employee and the
payment in kind, which may not be more than 10% of the wage for
accommodation. 4. Transport
allowances, bonuses, increases Sectoral
Determination 7: Domestic Sector, South Africa does not regulate these and
are therefore open to negotiation between the parties. 5. Hours of
work 5.1 Normal hours
(excluding overtime) A domestic worker may not be made
to: • work more than
45 hours a week; • work more than
nine hours per day for a five day work week; • work more than
eight hours a day for a six day work week; and 5.2 Overtime A
domestic worker may not work more than 15 hours overtime per week but may not
work more than 12 hours on any day, including overtime. Overtime
must be paid at 1.5 times the employee’s normal wage or an employee may agree
to receive paid time off. 5.3 Daily and
weekly rest periods 5.3.1 A daily rest period of 12 consecutive
hours and a weekly rest period of 36 consecutive hours, which must include
Sunday, unless otherwise agreed, must be allowed. 5.3.2 The daily rest period may by agreement be
reduced to 10 hours for an employee who live on the premises whose meal
interval lasts for at least three hours. 5.3.3 The weekly rest period may by agreement be
extended to 60 consecutive hours every two weeks or be reduced to eight hours
in any week if the rest period in the following week is extended
equivalently. 5.4 Standby 5.4.1 Standby means any period between 20:00 and
06:00 the next day when a domestic worker is required to be at the workplace
and is permitted to rest or sleep but must be available to work if necessary. 5.4.2 May only done if it is agreed in writing
and on not more than five times per month must be compensated by the payment
of an allowance of at least 820,00 per shift. 5.5 Night work -
after 18:00 and before 06:00 Worked
only if agreed to in writing and must be compensated by an allowance and if
the domestic resides at the workplace or transport is available. 6. Meal
intervals A
domestic worker is entitled to a one-hour break for a meal after not more
than five hours work. Such interval may be reduced to 30 minutes, by
agreement between the parties. When a second meal interval is required
because of overtime worked, it may be reduced to not less than 15 minutes. If
required or permitted to work during this period, remuneration must be paid. 7. Sunday work Work on
Sundays is voluntary and a domestic worker can therefore not be forced to
work on a Sunday. If the employee works on a Sunday
he/she shall be paid double the daily wage. If the
employee ordinarily works on a Sunday he/she shall be paid one and one-half
time the wage for every hour worked. Paid time-off in return for working on a
Sunday may be agreed upon. 8. Public
Holidays The
days mentioned in the Public Holidays Act must be granted but the parties can
agree to further public holidays. Work on a public holiday is entirely
voluntary and a domestic worker may not be forced to work on such public
holiday. The
official public holidays are:
Any
other day declared an official public holiday from time to time should also
be granted. These days can be exchanged for
any other day by agreement. If the
employee works on a public holiday he/she shall be paid double the normal
days wage. 9. Annual
Leave Annual
leave may not be less than three weeks per year for full-time workers or by
agreement, one day for every 17 days worked or one hour for every 17 hours
worked. The
leave must be granted not later than six months after completion of the period
of 12 consecutive months of employment. The leave may not be granted
concurrent with any period of sick leave, nor with a period of notice of
termination of the contract of employment. 10. Sick leave During
every sick leave cycle of 36 months an employee is entitled to an amount of
paid sick leave equal to the number of days the employee would normally work
during a period of six weeks. During
the first six months of employment, an employee is entitled to one day’s paid
sick leave for every 26 days worked. The
employer is not required to pay an employee if the employee has been absent
from work for more than two consecutive days or on more than two occasions
during an eight-week period and, on request by the employer, does not produce
a medical certificate stating that the employee was unable to work for the
duration of the employee’s absence on account of sickness or injury. 11. Maternity
leave The
employee is entitled to at least four consecutive months’ maternity leave.
The employer is not obliged to pay the domestic worker for the period for
which she is off work due to her pregnancy. However the parties may agree
that the domestic worker will receive part of or her entire salary/wage for
the time that she is off due to pregnancy. 12. Family
responsibility leave Employees
employed for longer than four months and for at least four days a week are
entitled to take five days’ paid family responsibility leave during each
leave cycle when the employee’s child is born, or when the employee’s child
is sick or in the event of the death of the employee’s spouse or life partner
or parent, adoptive parent, grandparent, child, adopted child, grandchild or
sibling. 13. Deduction
from the remuneration The
Sectoral Determination prohibits an employer from deducting any monies from
the workers wages without his/her written permission. A
deduction of not more than 10% of the wage may be deducted for a room or
other accommodation provided it is kept in a good condition has at least one
window and a door, which can be locked, and he/she has access to a bathroom. 14. Other issues There
are certain other issues which are not regulated by the Sectoral
Determination such as probationary periods, right of entry to the employers
premises, afternoons off, weekends off and pension schemes, medical aid
schemes, training/school fees, funeral benefits and savings account, however
the aforementioned may be negotiated between the parties and included in the
contract of employment. 15. Prohibition
of Employment The
Sectoral Determination prohibits employment of any person under the age of 15
and it is therefore important for an employer to verify the age of the
domestic worker by requesting a copy of the identity document or birth
certificate. 16. Other conditions
of employment There
is no provision, which prevents any other conditions of employment being
included in a contract of employment but any provision, which sets
conditions, which are less favourable than those set by the Determination,
would be invalid.
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