This year, SERI and Izwi Domestic Workers Alliance dedicated Women’s month to raising awareness amongst employers of domestic workers of their role in the domestic employment relationship.
Domestic workers play a significant role in contemporary society. As more and more women join the labour force, and while national policies fail to facilitate the reconciliation of family life and work, domestic workers are an essential part of how many families and households operate. The child and home-care they provide contributes to the national economy by enabling others to carry out their own jobs. Domestic workers, 95% of whom are women according to Statistics South Africa, often lack recognition as real workers and work under unfair conditions. Part of the reason for this is employer non-compliance, reinforced by the Department of Employment and Labour’s failure to hold employers accountable for their legal obligations.
On 9 August, Women’s Day, SERI and Izwi launched, “Employing a Domestic Worker: a Legal and Practical Guide”, a user-friendly guide written for employers of domestic workers in South Africa, to inform them of their rights and obligations in the employment relationship, provide practical advice and support them to improve their employment practices.
The guide provides legal advice and guidelines on the different phases of the employment relationship in its different sections, namely, “Beginning the domestic employment relationship”, which outlines the interview process, details the terms of employment from the Basic Conditions of Employment Act like working hours, overtime and leave, and the requirements of the written particulars of employment; “Managing the domestic employment relationship”, which provides guidance on how to maintain a mutually beneficial relationship; and finally “Ending the domestic employment relationship”, which provides information on the rights and responsibilities of both parties at the end of the employment relationship under the law. The guide also includes a section on “Creating a fair workplace” which discusses fair wages, social protections, pensions and other benefits and Frequently Asked Questions.
Additionally, we collaborated with development economist, activist and radio presenter, Ayabonga Cawe, on a series of radio episodes to bring the key issues affecting domestic workers to the public discourse on Metro FM Talk, “Shop Stewards Corner” which airs weekdays between 8pm and 9pm. The guests included domestic workers, unionists, activists and researchers.
Listen to the episodes here:
To end Women’s Month, SERI’s Kelebogile Khunou and Izwi’s Amy Tekie wrote an op-ed, published in the Mail and Guardian, highlighting the importance of employer compliance with labour laws, to ensure that domestic workers in South Africa enjoy the rights they are entitled to such as decent working hours, overtime pay, public holidays, paid leave and fair dismissal procedures.
This is SERI’s second 2021 newsletter. In it we present a few highlights from our work in the four months (May to August) since the April newsletter which covered the January to April period.
In this period, SERI and IZWI launched a new resource guide for employers of domestic workers. Together with various partner organisations, we produced three factsheets on COIDA, police accountability and the post-Marikana Panel of Experts Report. We participated in a dialogue hosted by the Nelson Mandela Foundation where two of SERI’s urban land reform papers were launched. We launched a book by former SERI executive director, Stuart Wilson, titled “Human rights and the transformation of property”. We made policy submissions to parliament, the United Nations and the Department of Human Settlements.
SERI’s litigation highlights include support to CSAAWU shop steward, Ms Van Wyk, to challenge her dismissal for expressing her opinion, and engagement on Ms Maria Mahlangu’s family claim under COIDA and challenging the inappropriate use of interdicts to stifle protest in the Constitutional Court. SERI has also been attending the Marikana criminal trial relating to the murders of 13 August 2012 as part of our work for justice for the Marikana Massacre.
On 31 August 2021, the Mail & Guardian published an op-ed written by SERI's Kelebogile Khunou and Izwi's Domestic Worker Alliance's Amy Tekie entitled, "Employers should respect women’s rights and provide domestic workers with employment contracts". The op-ed discusses the main reasons for domestic worker employers' failure to comply with labour law. Khunou and Tekie argue that this is because employers still view domestic work as an informal arrangement between two individuals, rather than a form of employment regulated by labour laws and that domestic work is perceived as “unskilled work” involving household activities like cooking, cleaning and child-rearing, traditionally performed by women.
They write that "a critical step in overcoming South Africa’s race and class divide is to stop treating domestic workers as household servants. This shift begins with the actions of each employer, and with genuine effort from the state to enforce domestic workers’ hard-won rights."
The Socio-Economic Rights Institute and the Izwi Domestic Workers’ Alliance have created a guide to assist employers of domestic workers to manage the employment relationship. It includes detailed information on terms of employment (such as working hours, wages and leave), UIF and the Compensation for Occupational Injuries and Diseases Act (COIDA) requirements, guidelines for maintaining a healthy employment relationship and templates for contracts and payslips. The guide also gives information about performance reviews, disciplinary procedures and dismissal processes, and assists employers to handle difficult situations by providing answers to frequently asked questions.
On 31 August 2021, SERI will appear before the Constitutional Court on behalf of the Commercial, Stevedoring, Agricultural & Allied Workers Union (CSAAWU) and 173 employees to challenge an overbroad interdict that prohibited CSAAWU, striking workers, and unknown persons from protesting at Oak Valley Estates, a large farming estate in Grabouw, Western Cape.
CSAAWU began a protected strike on 6 May 2019 under picketing rules established by the CCMA. The workers went on strike to demand an increase in salary from R15 to R18 ($.86 to $1.03) per hour, an end to labour brokers, and an end to unfair and discriminatory housing practices forcing black workers to live in cramped single-sex hostels while their white and coloured counterparts were given familial accommodation.
After a few days of protesting, Oak Valley approached the Labour Court to interdict what it claimed were breaches of the picketing rules, mainly for the workers picketing outside the picketing area identified in the rules, interference with its customers, suppliers and nonstriking employees and “unlawful and criminal conduct”.
Amongst the arguments that SERI made in opposing the interdict was that the Labour Court could not interdict the strikers for criminal conduct when none of the conduct complained of could be linked to them. However, the court did not deem it necessary to determine if those interdicted were in any way linked to the conduct the employers wanted to interdict and on 21 June 2019, the court interdicted CSAAWU and all the strikers from committing unlawful and criminal conduct in furtherance of the strike.
On 6 August 2019, CSAAWU was granted leave to appeal to Labour Appeal Court, which was adjudicated in May 2020. However, SERI has now appealed to the Constitutional Court to obtain a decisive decision against the abuse of interdicts to silence activists.
SERI argues that "to restrain a striker or protestor from unlawful conduct which it has not been demonstrated they actually committed is inconsistent with the rule of law. It threatens to have a profound chilling effect on both the right to strike, and the right to protest."
SERI, together with partner organisations Institute for Security Studies (ISS) Gun Free South Africa (GFSA) the African Policing Civilian Oversight Forum (APCOF), has produced a set of infographics on the Panel of Experts Report on Policing and Crowd Management. The infographics have been developed to inform members of the public and the media about the contents of the panel report and its key recommendations.
More specifically, they provide information about the circumstances the led to the Panel of Experts being established, namely the Marikana massacre of 2012; the different issues the panel examined; what the panel said on issues of professionalisation, demilitarisation, and accountability; what the panel said on protest, the law, and crowd management; and what is needed for the successful and timeous implementation of the report.
The Panel of Experts was established in 2016 by then Minister of Police Nkosinathi Nhleko in terms of the recommendations of the Farlam Commission of Inquiry into the Marikana massacre. The Panel then developed and submitted its report to the Minister of Police in July 2018. Finally, in March 2021, weeks after the police killing of Mthokozisi Numba, the Minister of Police publically released the report. The panel was chaired by the late judge David Sakelene Vusimuzi Ntshangase and consisted of local and international policing experts in policing as well as members of the South African Police Services (SAPS).
“The Panel advocates for a professional, demilitarised and accountable police service lead by experienced, competent and credible leadership of unassailable integrity and for a system of crowd management that has as its foundation the responsibility to give full effect to the right to freedom of assembly embodied in section 17 of the Constitution, 1996.”