Guide to new domestic worker rules
A landmark ruling now allows domestic workers and their families to claim from the Compensation Fund
CLEANERS, gardeners, nannies – many households struggle to function without them, as the long weeks of hard lockdown last year proved. And yet until very recently South Africa’s million-strong domestic workforce weren’t recognised as employees in terms of the law, which meant that they didn’t qualify for any aid from the national Compensation Fund if things went wrong.
If they were injured on the job, they couldn’t expect any help from the fund to pay their medical bills, or compensation if they couldn’t work for months as a result of a workplace accident.
These are benefits most other workers take for granted but because the Compensation for Occupational Injuries and Diseases Act dates back to 1993 and government hasn’t changed it, domestic workers remained excluded.
That was until Sylvia Mahlangu, the daughter of a domestic worker, decided it was time to challenge the system when she lost her mom.
Sylvia was devastated when her mother, Maria, drowned in 2012 after she fell from a ladder into a pool while cleaning windows at the Pretoria home where she’d worked for more than two decades.
On top of the emotional trauma, Sylvia (then 24) was left high and dry financially as her mom had been the family’s breadwinner. When she tried to claim from the Compensation Fund she was turned away and told she didn’t qualify.
Sylvia wouldn’t leave it at that. With the help of the Socio-Economic Rights Institute of South Africa (Seri), she took the matter to court (YOU, 28 November 2019).
It’s taken a long time for the wheels of justice to turn, but Sylvia’s patience was finally rewarded last year when the Constitutional Court ruled in her favour.
The result is that the Compensation for Occupational Injuries and Diseases Act (Coida) has been amended.
This means that not only can Sylvia at last claim compensation (claims can be filed retrospectively for accidents that took place as far back as 1994) – now all domestic workers will be covered.
THE court’s decision is significant, says labour lawyer Michael Bagraim. “Firstly, domestic workers now have access to doctors, hospitals and pharmacies for
any injuries that occur while on duty (which will be covered by the fund).
“There are many other benefits for domestic workers, even funeral expenses and lump-sum payments for disability. It’s a major benefit all around.”
And it’s not only domestic workers who are entitled to compensation from the fund – their dependants can claim too.
Luke Kannemeyer, head of homecleaning services company SweepSouth, says the order is a critical milestone for domestic workers in South Africa.
“Our research shows that most domestic workers are breadwinners and on average support at least five financial dependants,” he says.
“In the past, an injury at work may have left a family destitute. Now, domestic workers and their families will have some recourse to ensure continued financial support in the case of a prolonged injury, disability or death.”
The landmark ruling is also good news for employers as it gives them immunity against any civil claims made by their employees for injuries sustained at work.
Contributions to the fund are around 1% of annual earnings, Kannemeyer says.
“That’s a small amount for the peace of mind of knowing your domestic worker is protected should an unfortunate accident occur in your home.”
WHAT EMPLOYERS NEED TO DO
If you employ a domestic worker (cleaner, nanny, gardener, driver or carer) for more than 24 hours a month you need to register them with the Compensation Fund as soon as possible.
Going forward new employees need to be registered with the fund within seven days of beginning work.
If you hire an employee through an agency, the agency will be responsible for contributing to the fund.
Failure to register and pay could result in costly penalties – you could face a 10% penalty, calculated according to what you should have paid, plus interest on the annual fee you should’ve paid.
This can become a significant amount that adds up over the years if you fail to pay.
And if an employee is injured on the job and you’re not registered and up to date with payments, you could be held responsible for huge amounts of money due to claims.
WHAT YOU CAN EXPECT TO PAY
Bagraim says contributions are determined by taking into account the annual salary of the domestic worker.
The formula for domestic workers is calculated as follows: annual earnings divided by 100x1,04.
So if a worker is being paid R5 500 per month, which works out to R66 000 per year, you’ll be required to pay R686,40 to the fund annually.
Once you’ve filed the Return of Earnings (ROE) you’ll receive an invoice that you need to pay within 30 days to avoid interest penalties.
Employers aren’t allowed to deduct money from a worker’s wages to cover fund contributions.
The minimum wage for domestic workers is currently set at R19,09 an hour, or R152,72 a day or R763,60 a week ( five days). This works out to R39 707 a year.
Based on this, the annual contribution to the fund for an employee that works a five-day work week would be R413.
But this minimum wage is really
THE LANDMARK RULING IS ALSO GOOD NEWS FOR EMPLOYERS AS IT GIVES THEM IMMUNITY AGAINST ANY CIVIL CLAIMS
the least that employers are required to pay in terms of the law.
A survey conducted by SweepSouth shows the average domestic worker would need to be paid R4 225 per month to cover all their expenses (including food, rent, transport and school fees).
It’s important that you give accurate earnings when filing your ROE declaration.
Don’t try to save money by stating that your employee earns less than he/she actually does. If something happens to your
DON’T TRY TO SAVE MONEY BY STATING THAT YOUR EMPLOYEE EARNS LESS THAN HE/ SHE ACTUALLY DOES
employee and a claim is made for a disability pension, for example, you might be asked to furnish proof of salary such as payslips and banking records.
WHAT IS COVERED?
In the event of an accident in the workplace, the employer will need to register a claim at cfonline.labour.gov.za/onlinesubmissions with doctor’s certificates and other evidence. This will apply to employers who have registered their workers.
For older cases that occurred before the change to Coida to allow the inclusion of domestic workers in the fund, either the employer or the employee can contact the fund directly on 0860-105-350 or cfcallcentre@labour.gov.za
BENEFITS COVERED BY THE FUND
■ Temporary total disablement Payable to an injured employee who’s booked off for a period of four days or more by the treating doctor.
All medical expenses will be paid from the date of the accident and the employee will receive 75% of their normal wage if they can’t work for an extended period, up to 24 months.
■ Permanent disablement pension Paid to an employee once a fund board has investigated the extent of the disability.
If, as a result of the accident, a worker can no longer work at all they’ll receive 75% of their normal wage in the form of a disability pension for life.
■ Funeral expenses Currently the maximum amount is set at R18 251 for employees who died on or after 1 April 2019.
■ Widow’s compensation The surviving spouse is paid a widow’s lump sum (2x75% of the employee’s monthly salary) in addition to a pension (40% of the monthly disability pension) for life.
■ Child compensation The children of the deceased employee are also paid a pension of 20% of the monthly disability pension up to the age of 18 years or when they get married or become financially emancipated. S Partial dependency award Paid to the parents or siblings of the deceased employee if there’s no surviving spouse or child. This is a once-off lump sum paid to one individual based on how dependent the family were on the employee. ■ Whole dependency award This is a pension award paid to the parents or siblings of the deceased employee who were dependent on the income of the deceased employee.
It will amount to 2x75% of the employee’s monthly salary, plus a monthly pension (40% of the monthly disability pension) for life.