On 19 February 2021, the Socio-Economic Rights Institute (SERI) made a submission to the Parliamentary Portfolio Committee on Employment and Labour on the Compensation for Occupational Injuries and Diseases Amendment Bill.
The submission focuses on the inclusion of domestic workers in the Compensation for Occupational Injuries and Diseases Act 130 of 1993 (COIDA) in the light of the Constitutional Court judgment on the Mahlangu v Minister of Labour matter. In this matter, SERI represented Sylvia Mahlangu, the daughter of domestic worker Maria Mahlangu who accidentally drowned at her employer’s home in 2012, and the South African Domestic Service and Allied Workers Union (SADSAWU).
On 19 November 2020, the Constitutional Court handed down an order declaring the constitutional invalidity of section 1(xix)(v) of COIDA which excluded domestic workers employed in private households from the definition of "employee", precluding them from claiming from the Compensation Fund for work-related injuries, illnesses or death. The Court also ruled that the order of constitutional invalidity is to have immediate and retrospective effect from 27 April 1994, which means that those domestic workers and dependants who have experienced work-related injuries, diseases, or death as far back as 27 April 1994 are also able to submit their claims.
The submission begins by providing context and highlights the role of domestic worker unions and allied organisations in the struggle to include domestic workers in compensation for occupational diseases and injuries, which goes as far back as the 1980s when the first domestic workers’ union South African Domestic Workers Union (SADWU) was formed. For decades, domestic workers have contended that domestic work, like all other work, is prone to accidents, injuries, diseases, and death. In a study by Solidarity Center common injuries and ailments reported by domestic workers include dog bites, back injuries, chronic spinal cord injuries, broken limbs, cuts, asthma, and bone fractures. The submission acknowledges the inclusion of domestic workers in the Amendment Bill however, asserts that the Bill does not give effect to the Mahlangu judgment which enables domestic workers and their dependents to claim for compensation for occupational injuries, diseases, and death from 27 April 1994.
The submission includes a legal analysis of the Amendment Bill which discusses how the judgment in Mahlangu v Minister of Labour can be fully complied with to ensure that domestic workers, as a class of employees, are sufficiently protected. This section of the submission does this by identifying the sections in the Bill which prevent retrospective claims from domestic workers from being processed.
Lastly, the submission highlights the need for coverage of domestic workers in COIDA to go hand in hand with enforcement and compliance, a significant challenge in the domestic work sector given its unique nature.
Overall, the submission asserts that a mechanism must be put in place to enable the Compensation Fund to process retrospective claims from domestic workers. The submission recommends that the Department of Employment and Labour should:
The submission was endorsed by South African Domestic Service and Allied Workers Union (SADSAWU), United Domestic Workers of South Africa (UDWOSA), Izwi Domestic Workers Alliance and the International Domestic Workers Federation.