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Domestic Workers Convention, 2011 (No. 189) - South Africa (RATIFICATION: 2013)

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Article 3(2)(a) of the Convention. Freedom of association and collective bargaining. In its report submitted in 2021, the Government reiterates that the rights to freedom of association and collective bargaining of workers, including domestic workers, are protected under the Constitution of South Africa and under the Labour Relations Act No. 66 of 1995 (as amended). Regarding the establishment of bargaining councils in the domestic work sector, the Government indicates that this should be a voluntary endeavour by the concerned parties. The Government acknowledges that, due to the nature of their work, it is difficult for domestic workers to exercise their organization rights, such as electing representatives. The Government thus considers that the traditional model of collective bargaining “might sometimes be unlikely to succeed” in the domestic work sector. The Government indicates that it has therefore adopted the Basic Conditions of Employment Act No. 75 of 1997, which provides domestic workers with the same baseline of rights and protections as other workers. The Committee recalls that Article 3 of Convention, requires taking measures to respect, promote and realize the effective recognition of the right to collective bargaining of domestic workers. Paragraph 2(b) of Recommendation No. 201 accompanying the Convention invites Governments to give consideration to taking or supporting measures to strengthen the capacity of workers’ and employers’ organizations and organizations representing domestic workers and employers of domestic workers to promote effectively the interests of their members. The Committee considers that, in view of the specificities of domestic work, it is of particular importance to take active measures to support the establishment of organizations of domestic workers and employers and to encourage their engagement in social dialogue on matters of interest to them (General Survey 2022 on Securing decent work for nursing personnel and domestic workers, paragraphs 1007–1008). Therefore,taking into account the particular characteristics of domestic work, including frequent isolation in the domestic workplace, the Committee requests the Government to provide information on measures taken or envisaged, including awareness raising campaigns, to promote and guarantee in practice the right of domestic workers to freedom of association and collective bargaining, The Committee further requests the Government to keep it informed of any progress made in this respect, including with respect to the establishment of bargaining councils in the domestic work sector.

Article 8. Migrant domestic workers. The Government indicates that there is a strong regulatory framework to safeguard the rights of domestic workers, including migrant domestic workers, in South Africa. In that the regard, the Government mentions: (i) the Basic Conditions of Employment Act, which sets minimum employment conditions, (ii) the Sectoral Determination for domestic workers, specifically addressing the minimum working conditions of domestic workers, (iii) the Employment Equity Act, protecting workers from unfair treatment and discrimination, (iv) the 2008 decisions from the Commission for Conciliation, Mediation and Arbitration (CCMA) and from the Labour Court, extending basic labour protections and rights to migrants working illegally in the country, and (v) the newly adopted National Minimum Wage Act, which protects all domestic workers by providing for a national minimum wage. Noting, with regret, that the Government does not provide the previously requested information as regards the measures aimed specifically at safeguarding the rights and protecting female migrant domestic workers from abuse or exploitation, the Committee reiterates, once again, its request in this respect.

Article 9(c). Possession of travel and identity documents. The Committee notes, with regret, that despite its repeated requests in that regard, the Government provides no information on the manner in which it ensures that domestic workers are entitled to keep their travel and identity documents in their possession, as required by the Convention. The Committee thus reiterates, once again, its request that the Government provide information on the manner in which effect is given to Article 9(c) of the Convention.

Articles 10 and 11. Equal treatment and minimum wage. The Committee notes, with interest, the Government’s indications according to which a new National Minimum Wage Act was adopted in 2021, aiming at reducing income inequality by improving the wages of the lowest paid workers such as domestic workers. The Government indicates that sectors particularly vulnerable to unemployment and poorly organized, such as the domestic work sector, benefit from a longer transition period to be brought up to the national minimum wage. The Government reports that the minimum wage for domestic workers increased by 23 percent in 2021, while remaining 12 percent below the national wage. The Government’s objective is for the minimum wage of domestic workers to be at par with the minimum national wage by 2022. The Committee requests the Government to provide updated information, including statistical data disaggregated by sex, on the impact of the National Minimum Wage Act on the salary of domestic workers. The Committee further reiterates its request for information on measures taken to ensure that, in practice, the remuneration of domestic workers is established without discrimination based on sex.

Article 13. Occupational health and safety. The Committee notes with interest the adoption, in 2023, of an amendment to the Compensation for Occupational Injuries and Diseases Act No. 130 of 1993 (COIDA) which extends the personal scope of this Act to domestic workers employed in a private household. The Government also indicates that the Occupational Health and Safety Act No. 85 of 1993 applies to domestic workers. Recalling the recent recognition of the right to a healthy and safe working environment as a fundamental right at work, the Committee asks the Government to provide updated information on how this right is guaranteed in law as well as in practice given the specific challenges pertaining to securing compliance in the specific context of domestic workers.

Article 15. Private employment agencies. Protections against abusive employment practices.In the absence of relevant information in the Government’s report in that regard, the Committee requests the Government to provide detailed information on the manner in which complaints, alleged abuses and fraudulent practices concerning the activities of private employment agencies in relation to domestic workers, including migrant domestic workers, are processed and investigated. The Committee requests the Government to provide information, including statistical data, concerning the nature and type of violations reported by domestic workers, as well as the outcomes and sanctions imposed, if any. The Committee further reiterates, once again, its request to the Government to supply information on consultations with the social partners, as well as with organizations representative of domestic workers and those representative of employers of domestic workers, regarding the implementation of measures provided for in Article 15 of the Convention. Lastly, noting that private employment agencies can, in collaboration with a well-functioning public employment service, play a critical role in improving labour market efficiency, the Committee wishes to draw attention to the ILO Campaign to promote the joint ratification of Convention No. 88 and the Private Employment Agencies Convention, 1997 (No. 181). The Committee therefore invites the Government to consider ratifying also Convention No. 181, as it represents the most up-to-date instrument in the area of private employment services.

Article 17. Access to justice. Complaints mechanisms. Labour inspection. The Government indicates that the Department of Employment and Labour has 127 Labour Centres and numerous offices accessible to vulnerable workers, including domestic workers. The Government indicates that complaints mechanisms are also available through domestic workers unions as they may register complaints on behalf of individual domestic workers, in addition to being able to register collective complaints. The Government adds that the Inspection and Enforcement Services holds each year an information session for domestic workers during which the contact information of Labour Inspectors is made available. The Government further provides statistical data on the number of inspections carried out, the number and type of violations identified, and the sanctions imposed. The Committee requests the Government to continue to provide updated detailed information, including statistical data, on the effective access of domestic workers to complaint mechanisms.

Judicial decisions.The Committee notes the information provided by the Government and requests that it continues to provide information regarding any decisions issued by the courts or by the Commission from Conciliation, Mediation and Arbitration (CCMA), relevant to the application of the Convention.