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

Other comments on C189

Direct Request

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Article 3(2)(a) of the Convention. Freedom of association and collective bargaining. The Committee welcomes the information contained in the Government’s first report on the application of the Convention. With regard to freedom of association rights for domestic workers, the Government indicates that section 18 of the Constitution of South Africa, 1996, guarantees the right to freedom of association for everyone as a constitutional right. In addition, section 4 of Chapter II of the Labour Relations Act, 2005, stipulates, inter alia, that every worker is entitled to form or join a trade union of his or her choosing and to take part in trade union activities. The Committee recalls its previous observation under the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), in which it requested the Government to provide information on measures taken or envisaged to ensure that vulnerable workers may effectively exercise in practice their right to establish and join organizations of their own choosing. In this respect, the Committee also recalls that the particular characteristics of domestic work, including isolation and the absence of co-workers in domestic workplaces may present practical challenges to domestic workers’ exercise of their right to freedom of association. The Committee therefore requests the Government to provide information regarding measures taken or envisaged to ensure the protection of the right of domestic workers, including domestic farm workers, to freedom of association and their right to collectively bargain.

Article 8(4). Migrant domestic workers. The Government indicates that all migrant workers in South Africa enjoy the same terms and conditions of employment as those established for South African workers covered under national legislation. The contract of employment of a migrant worker is subject to review and approval by the Department of Home Affairs of the South African Immigration Services prior to the migrant worker’s arrival in the country, to ensure that the contract contains no abusive clauses and is in full conformity with the Employment Services Act, 2014, and the Immigration Act, 2002 (Act 13 of 2002). The Committee also notes that the Government is a signatory to the Southern African Development Community (SADC) Protocol on the Facilitation of Movement of Persons – an instrument aimed at regulating the movement of people in the SADC region, but that the Protocol is not yet in force. The Government is also a party to the African Union Special Initiative on Domestic Workers of 2015, which aims to eradicate women’s employment vulnerabilities in Africa. The Initiative recognizes that domestic work is among the most vulnerable forms of employment in Africa. Moreover, according to a 2013 ILO study, An overview of domestic work in Africa, women make up about 73 per cent of all domestic workers in the region. The Committee notes that the legislation and regulations applicable to migrant domestic workers in South Africa do not indicate the conditions under which such workers could be entitled to repatriation upon the expiration or termination of their employment contract. The Committee requests the Government to provide information on measures taken to ensure the effective application of Article 8 of the Convention, including any measures taken or envisaged to protect the rights of female migrant domestic workers under national laws or regulations, bilateral, multilateral, regional agreements or other arrangements. In addition, the Committee requests the Government to provide information on the conditions under which migrant domestic workers in South Africa would be entitled to repatriation in accordance with Article 8(4) of the Convention.

Article 9(c). Possession of travel and identity documents. The Committee notes that the Government provides no information regarding any measures aimed at ensuring that domestic workers are entitled to keep their travel and identity documents in their possession, as required by this provision of the Convention. The Committee therefore requests the Government to 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 Government indicates that domestic workers are entitled to the same terms and conditions of work, including hours of work, overtime compensation, periods of daily and weekly rest and annual leave, as are other workers under the Basic Conditions of Employment Act. In respect of minimum wage coverage for domestic workers, and noting the feminization of the domestic work sector, the Committee recalls its 2015 Direct Request under the Discrimination (Employment and Occupation) Convention, 1958 (No. 111), in which it requested the Government to provide information on measures taken to ensure that wages in sectors predominantly employing women are not set on the basis of gender-biased undervaluation of the work performed in these sectors. The Committee requests the Government to provide information on measures taken to ensure equal treatment between domestic workers and other workers in respect of terms and conditions of employment, including measures taken to ensure that the remuneration of domestic workers is established without discrimination based on sex.

Article 13. Occupational Health and Safety. The Committee notes the Government’s indication that domestic workers are excluded from the application of South Africa’s Compensation for Occupational Injuries and Diseases Act (COIDA), but that an amendment to extend coverage under COIDA to include domestic workers is under consideration. The Committee therefore requests the Government to provide information on how effect is given to Article 13 of the Convention, including up-to-date information on measures taken or contemplated to ensure the occupational health and safety of domestic workers.

Article 14. Social Security. The Government indicates that it has taken measures to ensure that domestic workers enjoy the same protections in the event of retrenchment as other workers. In this regard, workers, including domestic workers, are entitled to access the Unemployment Insurance Fund and contribute to the Fund at the same rate as other workers. The Government indicates that it is currently exploring the possibility of establishing a pension fund for both domestic and farm workers. The Committee requests the Government to provide information on the measures taken to ensure that domestic workers, including those working on farms, enjoy conditions that are not less favourable than those applicable to other workers in relation to social security protection, including maternity protection and pensions.

Article 15. Protections against abusive employment practices. The Government’s report does not provide information regarding the measures taken to protect domestic workers, including migrant domestic workers, recruited or placed by private employment agencies, against abusive practices. The Committee therefore requests the Government to provide information on the measures taken to implement the provisions of this Article, including information on consultations that have taken place with the social partners as well as with organizations representative of domestic workers and those representative of employers of domestic workers, if any.

Article 17. Complaints mechanisms. Labour inspection. The Government indicates that domestic workers have the same rights as other workers to lodge complaints with the inspection and enforcement services under South African labour legislation. In this regard, and recalling the particular vulnerabilities faced by domestic workers, the Committee requests the Government to provide information regarding measures taken to ensure the effectiveness and accessibility of complaints mechanisms for the protection of the rights of domestic workers. In addition, the Committee requests the Government to provide information regarding measures for labour inspection, including statistical information on the number of inspections carried out, and the number and type of infringements identified.

Judicial decisions. The Committee requests the Government to provide information regarding any decisions issued by the courts or by the Conciliation, Mediation and Arbitration Commission, relevant to the Convention, and to provide copies of any such texts.

Application of the Convention in practice. The Committee requests the Government to provide a general appreciation of the manner in which the Convention is applied in South Africa, including extracts from inspection reports, as well as information on the number of workers covered by measures giving effect to the Convention, disaggregated by sex and age, as well as the number and type of infringements reported.