They do crit­i­cal work but the con­tin­ued fail­ure to in­clude them in the act to claim for in­juries sus­tained at work is un­con­sti­tu­tional, write Kele­bogile Khu­nou and Thu­lani Nkosi

CityPress - - Voices & Careers - Khu­nou is a re­searcher and Nkosi is a se­nior at­tor­ney at the So­cio-Eco­nomic Rights In­sti­tute

In an im­ment court case, the Pre­to­ria High Court will hear the mat­ter of Mahlangu v Min­is­ter of Labour, in which the sur­viv­ing daugh­ter of a do­mes­tic worker, who died at her em­ployer’s home, will be chal­leng­ing the con­sti­tu­tion­al­ity of the Com­pen­sa­tion for Oc­cu­pa­tional In­juries and Dis­eases Act (Coida). The act ex­cludes do­mes­tic work­ers from its def­i­ni­tion of “em­ployee” and pre­cludes them from claim­ing from the Com­pen­sa­tion Fund for work-re­lated in­juries, ill­nesses or death.

On March 31 2012, Maria Mahlangu, a do­mes­tic worker who was par­tially blind, was al­legedly wash­ing the out­side of some win­dows when she slipped from the steplad­der on which she was stand­ing and fell into the ad­ja­cent pool, which was un­fenced and un­cov­ered. Maria could not swim and drowned. Her body was dis­cov­ered hours later by her em­ployer, who had been present in the home at the time of the in­ci­dent.

When the em­ployer was asked to com­pen­sate the fam­ily, he replied that he could only af­ford to give them R2 500. If Maria had been em­ployed in any place other than as a do­mes­tic worker, her de­pen­dants would have been el­i­gi­ble for com­pen­sa­tion for her death, which oc­curred at work. In­stead, her daugh­ter and grand­son, for whom she was the sole bread­win­ner, were left des­ti­tute.

Em­ploy­ers pay into the Com­pen­sa­tion Fund each month for each em­ployee. In the event of in­juries, dis­eases or death aris­ing out of and in the course of em­ploy­ment, statu­tory ben­e­fits are paid from the fund to em­ploy­ees or de­pen­dants of de­ceased em­ploy­ees.

The act, how­ever, ex­pressly ex­cludes do­mes­tic work­ers, defin­ing an “em­ployee” as “a per­son who has en­tered into or works un­der a con­tract of ser­vice or of ap­pren­tice­ship or learn­er­ship, with an em­ployer … but does not in­clude … a do­mes­tic em­ployee em­ployed as such in a pri­vate house­hold”. A case can be made that this amounts to dis­crim­i­na­tion against do­mes­tic work­ers, the ma­jor­ity of whom are poor black women.

The ef­fect of this ex­clu­sion is that do­mes­tic work­ers, 75% of whom, ac­cord­ing to the Na­tional In­come Dy­nam­ics Sur­vey of 2012, are the sole in­come providers for their fam­i­lies, can­not claim from the fund, as their em­ploy­ers are ab­solved from con­tribut­ing to it. This leaves them and their fam­i­lies vul­ner­a­ble and without a safety net against loss of in­come due to work­place in­jury, ill­ness or death.

Do­mes­tic work is not viewed by the pub­lic as hav­ing oc­cu­pa­tional haz­ards. In­stead, hun­dreds of do­mes­tic work­ers, which in­cludes gar­den­ers, driv­ers and care­givers, ac­cord­ing to the Depart­ment of Labour’s def­i­ni­tion, ex­pe­ri­ence work-re­lated in­juries and ill­nesses or, like Maria Mahlangu, have died. In a study com­mis­sioned by Sol­i­dar­ity Cen­ter to in­ves­ti­gate the in­ci­dences of work­place in­jury among do­mes­tic work­ers in South Africa, in­ter­view re­spon­dents re­ported in­juries, ail­ments and dis­eases such as dog bites, blind­ness, deaf­ness, arthri­tis, back in­juries, chronic spinal cord in­juries, bro­ken limbs, cuts, tu­ber­cu­lo­sis, asthma and bone frac­tures. In­ci­dences of phys­i­cal vi­o­lence from em­ploy­ers have also been re­ported. While all other em­ploy­ees have a fail-safe against in­juries and dis­eases sus­tained in the work­place, do­mes­tic work­ers are left out in the cold.

The im­pli­ca­tion of ex­clud­ing do­mes­tic work­ers is that the only re­course for them and their de­pen­dants is to sue em­ploy­ers. It is un­rea­son­able to ex­pect that they or their fam­i­lies could take up such lit­i­ga­tion.

Even with the col­lec­tive ef­forts of do­mes­tic work­ers to im­prove their work­ing con­di­tions over the years, and the ef­forts of the state to in­te­grate them into labour leg­is­la­tion, they re­main one of the most vul­ner­a­ble oc­cu­pa­tional groups in so­ci­ety.

They are iso­lated from one an­other, sep­a­rated across in­di­vid­ual homes, mak­ing it dif­fi­cult for them to or­gan­ise and cam­paign for bet­ter work­ing con­di­tions. That their place of work is in the pri­vate home, be­hind closed doors, only in­ten­si­fies their vul­ner­a­bil­ity, and ex­poses them to pos­si­ble ex­ploita­tion and abuse.

Ac­cord­ing to a re­port by the Univer­sity of the Western Cape’ s So­cial Law Project, the Com­pen­sa­tion Fund’ s jus­ti­fi­ca­tion for do­mes­tic work­ers’ ex­clu­sion has mainly been that it would be“lo­gis­ti­cally im­pos­si­ble to ad­min­is­ter” be­cause there is the po­ten­tial for a sin­gle do­mes­tic worker to have mul­ti­ple em­ploy­ers. This ar­gu­ment, how­ever, does not hold up since, as the So­cial Law Project has ar­gued, the Un­em­ploy­ment In­sur­ance Act, which in­cludes do­mes­tic work­ers, is ad­min­is­tered in a sim­i­lar way to Co ida and the is­sue of mul­ti­ple em­ploy­ers has been re­solved.

Labour Min­is­ter Mil­dred Oliphant has con­firmed – at a con­fer­ence for de­cent work in 2011, in her 2013 bud­get vote in Par­lia­ment and at a do­mes­tic work­ers im­bizo in Soweto in 2014 – that the depart­ment in­tends to amend the act to in­clude do­mes­tic work­ers.

Tak­ing these prom­ises into ac­count, in ad­di­tion to the con­sti­tu­tion­al­ity of sec­tion 1 of Coida, a core com­po­nent of Mahlangu’s daugh­ter’s ar­gu­ment in the forth­com­ing case will be that the fail­ure by the depart­ment to amend the act timeously is in it­self an un­con­sti­tu­tional act wor­thy of cen­sure by the court.

Fair work­ing con­di­tions for do­mes­tic work­ers re­quire le­gal re­form but, more im­por­tantly, they re­quire the trans­for­ma­tion of at­ti­tudes and be­hav­iours formed over decades of ex­ploita­tion and degra­da­tion. The in­clu­sion of do­mes­tic work­ers in the act would not solve the prob­lem of the un­fair, dis­crim­i­na­tory and abusive treat­ment of do­mes­tic work­ers, but it would be a step in the right di­rec­tion.

Do­mes­tic work­ers should be able to claim com­pen­sa­tion for in­juries at work

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