Big changes for South Africa’s domestic workers will apply retroactively, labour group warns

South African employers will need to get up to date with labour changes relating to domestic workers as they are likely to take effect retroactively, says the National Employers’ Labour Association (NELA).

In November, South Africa’s Constitutional Court ruled that parts of the Compensation for Occupational Injuries and Diseases Act (COIDA) are unconstitutional as it excludes domestic workers employed in private households from the definition of ‘employee’.

This, the ruling states, must be rectified retrospectively which will could have immediate consequences for employers.

“The bottom line is that we, as employers, can’t wait for the amendment to be promulgated because the amendment is retrospective,” said says Albert van der Merwe, assistant general secretary of NELA,

“If your domestic employee is injured on your property today, for example, they will be entitled to compensation. The legislation states that cases dating back to 2004 will be eligible for compensation,” he said.

Van der Merwe said that along with the Unemployment Insurance Fund (UIF), employers will need to pay towards the COIDA to ensure their domestic employee(s) are covered, as commercial businesses currently do.

However, he said it is still unclear as to how the payment process, the assessment process. and compensation repayments processes will work.

“What we do know is that the current processes and procedures of the Workmans’ Compensation are not suitable to manage the domestic sector and employers need the correct information and representation.”

Legally compliant 

Van der Merwe said that South Africa faces a major challenge when it comes to employers of domestic staff being legally compliant.

“Many employers do not understand that the definition of ‘domestic worker’ includes gardeners, nannies, caregivers and chauffeurs employed in private households.

“To be compliant, employers not only need to register their employees for UIF but must also meet the other requirements stipulated in Sectoral Determination 7 – Domestic Workers, such as contract of employment, method of time-keeping, overtime and Sunday time remuneration, recording of all leave types and provision of payslips, just to mention a few.”

He further warned that the COIDA is going to be another aspect of non-compliance if not managed properly.

“Compliance is key and eliminates unnecessary financial risks for employers and friction in the workplace. As an employer it can be challenging keeping up-to-date on how to remain compliant.

“That’s why it’s so important to support organisations proficient in doing it for you,” he said.

Read: South Africa’s domestic workers score Constitutional Court victory

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Big changes for South Africa’s domestic workers will apply retroactively, labour group warns