GUIDELINES

 

Notice period and termination of employment Procedure for termination of employment Wage/Remuneration/Payment Transport allowances Hours of work Meal intervals Sunday work Public holidays Annual leave Sick leave Maternity Leave Family responsibility leave Deduction from the remuneration Other issues Prohibition of Employment Other conditions of employment Other important provisions affecting wages Information concerning pay Prohibited Acts concerning payment of wages Leave Provision Termination of Employment Social Security Enforcement

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

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.

AREA A
If a worker works less than 27 ordinary hours per week in Area A, which includes the Nelson Mandela Metropole, his/her hourly wage is R4,51 per hour.  If a worker works more than 27 ordinary hours per week, in Area A, which includes the Nelson Mandela Metropole, his/her hourly wage is R4,10 per hour.

AREA B
If a worker works less than 27 ordinary hours per week in Area B, his/her hourly wage is R3,66 per hour.  If a worker works more than 27 ordinary hours per week, in Area B, his/her hourly wage is R3,33 per hour.

4. Transport allowances

Sectoral Determination 7: Domestic Sector, South Africa does not regulate this and is 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

5.4 Standby

5.5 Night work - after 18:00 and before 06:00

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:

New Years Day Human Rights Day Good Friday Family Day Freedom Day Workers Day

Youth Day National Woman's Day Heritage Day Day of Reconciliation Christmas Day Day of Goodwill

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 axe 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.

These guidelines are not meant to be a complete summary of the Sectoral Determination and/or legal advice. Should there be any doubt as to rights and/or obligations in terms of the Act or terms of any clause of the suggested Contract of Employment, such queries can be directed to the local office of the Department of Labour, who will gladly assist.

17. Other important provisions affecting wages

17.1 Guaranteed minimun rate

Depending on circumstances some domestic workers might work for less than four hours per day. Should this be the case, he/she should then be paid for four hours worked.

17.2 Annual increase

Wages will go up by 8% on 1 November 2003 and 1 November 2004 respectively.

If the inflation rate is higher than 10% then the wage increase of 8% will be adjusted by the Department of Labour.

17.3 Calculating the minimum wages

Employers who cannot afford to pay the new minimum wage have an option of reducing the hours of work, instead of retrenching the employee.

It is illegal to pay lower than the prescribed hourly rate. If you pay more than the prescribed hourly rate you may not reduce the rate because it will be an unfair labour practice.

17.4 Working hours per week

Domestic workers are allowed to work a maximum of 45 ordinary hours per week

• Maximum of 9 hours per day if working for 5 days a week

• Maximum of 8 hours per day if working more than 5 days a week

17.5 Calculation of overtime

Overtime is payable when the domestic worker works longer than the ordinary hours prescribed per day or per week.

When he/she is on standby and works for longer than three hours, overtime rates are payable.

Overtime payment: one and a half times the hourly wage

• (Area A - 27+ hours per week - R4.1 0 + R2.05 R6.15)

• (Area B - 27+ hours per week - R3.33 + Rl.66 R4.99)

18. Information concerning pay

Any payment can be in cash, by cheque or direct deposit into an account designated by an employee. The payment must be given at the workplace, during working hours and in a sealed envelope, which becomes the property of the employee. A payslip must be given at all times.

The employer must keep the payslips for three years.

Details on pay slip to include:

• the employer's name and address;

• the domestic workers name and occupation;

• the period in respect of which payment is made;

• the domestic worker's wage rate and overtime rate;

• the number of ordinary hours worked by the domestic worker during that period;

• the number of overtime hours worked by the domestic worker during that period;

• the number of hours worked by the domestic worker on a public holiday or on a Sunday;

• the domestic worker's full wage;

• details of any other pay arising out of the domestic worker's employment;

• details of any deductions made;

• the actual amount paid to the domestic worker.

19. Prohibited Acts concerning payment of wages

The determination deals with deductions, which are permissible and impermissible.

19.1 Permissible deductions

• Medical insurance

• Savings

• Pension fund

• Trade union subscription

• Order of account payment to a financial institution

• Rentals

• Loan or advance (not more than 10% of total wage)

19.2 Impermissible deductions

• Amount greater than the actual remuneration received

• Breakages (crockery, electrical appliances)

• Damages (ironing)

• Meals provided during working time

• Clothing

• Work equipment

19.3 Deductions for accommodation

This may be deducted from wages (not more than 10% of total wage) on condition that:

• The room is weatherproof and in good condition

• The room has at least one window and door that can be locked

• The room is fitted with a toilet, a bath/shower or has access to another bathroom

20. Leave Provision

The different types of leave an employee is entitled to.

21. Termination of Employment

A contract of employment may be terminated only on notice of not less than one week if the domestic worker has been employed for six weeks 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.

22. Social Security

The Unemployment Insurance Act has been amended to include domestic workers.  Once promulgated domestic workers will be expected to contribute 1 % of their wage towards the fund.

The Department of Labour will investigate the implementation of a provident fund in the next few years.

23. Enforcement

The inspectors of the Department of Labour will handle any contraventions of the sectoral determination. They will first attempt to solve the complaint telephonically, thereafter they will try and secure an undertaking and finally issue compliance orders if he/she is of the view that the law has been contravened. If still unresolved the case will go to the labour court.

Unsatisfied employers may object to a compliance order.